Payne v. Salazar

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 10, 2010 Decided September 7, 2010

No. 09-5291

CASSANDRA M. PAYNE,
APPELLANT

v.

KENNETH LEE SALAZAR,
SECRETARY, DEPARTMENT OF THE INTERIOR,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00164)

David A. Branch argued the cause and filed the brief for
appellant.

Christian A. Natiello, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

Before: GINSBURG, HENDERSON, and GARLAND, Circuit
Judges.
 2

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: This case raises an important
and largely undecided issue under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. The government
contends that a federal employee who wins one Title VII claim
before her agency, but loses another, must put the first at risk in
order to seek relief on the second in federal court. Finding no
basis for the government’s interpretation of the statute, we reject
that contention.

I

In Scott v. Johanns, 409 F.3d 466, 468-470 (D.C. Cir.
2005), we explained the relevant statutory and regulatory
framework. Before filing suit, a federal employee who believes
that her agency has discriminated against her in violation of
Title VII must first seek administrative adjudication of her
claim. Id. at 468; see 42 U.S.C. § 2000e-16(c). Under
regulations promulgated by the Equal Employment Opportunity
Commission (EEOC) pursuant to Title VII, the employee must
do so by filing a complaint with her agency. 29 C.F.R.
§ 1614.106(a). The employing agency then conducts an
investigation and, if the employee so requests, refers the matter
to an EEOC administrative judge for a hearing. Id.
§§ 1614.106(e)(2), 1614.108-09. After the employing agency
investigates, or the administrative judge issues a decision, the
employing agency must take “final action.” Id. § 1614.110. If
the employee never requests a hearing, the agency’s final action
must “consist of findings . . . on the merits of each issue . . . and,
when discrimination is found, appropriate remedies and relief.”
Id. § 1614.110(b). If the employee requests a hearing, the
employing agency’s “final order shall notify the complainant
whether or not the agency will fully implement the
administrative judge’s decision.” Id. § 1614.110(a). An
 3

employee who is aggrieved by the agency’s final disposition of
her complaint may then either appeal to the EEOC or file suit in
federal court pursuant to 42 U.S.C. § 2000e-16(c). Id.
§ 1614.110.

Cassandra Payne has been employed by the Department of
the Interior since 1978. From April 1984 until June 2000, she
worked as a tractor operator at Rock Creek Park in Washington,
D.C. During that period, she worked Monday through Friday
and was able to attend church and Bible study on the weekends.
In June 2000, Payne suffered a nearly-fatal allergic reaction to
a bee sting. When she recovered, the Department reassigned her
to work indoors Wednesday through Sunday at the Rock Creek
Nature Center. From June 2000 through May 2004, Payne
repeatedly asked her supervisor for weekends off so she could
attend church and Bible study. All of her requests were denied.

In September 2004, Payne filed an Equal Employment
Opportunity (EEO) complaint with the Interior Department
alleging religious discrimination. Later in September, Payne
alleges, her supervisor retaliated against her for filing the EEO
complaint by giving her a minute-by-minute work schedule,
forbidding her to have breakfast with co-workers, and denying
her leave. Based on that allegation, Payne filed a retaliation
complaint, which the Department consolidated with her
discrimination complaint.

On September 18, 2007, an EEOC administrative judge
found that the Interior Department had discriminated against
Payne on account of her religion. The administrative judge also
found, however, that the Department had not retaliated against
her for filing a complaint. In October 2007, the judge entered an
order for monetary damages on the discrimination charge, which
the Department paid in December 2007.
 4

In January 2008, Payne filed suit in district court alleging
a single claim of retaliation in violation of Title VII, 42 U.S.C.
§ 2000e-3(a), based on the same retaliatory conduct initially
alleged in her 2004 EEO complaint. In July 2008, Payne
amended her suit to add a second retaliation claim based on the
Interior Department’s refusal in January 2008 to assign her
light-duty work after she returned from an extended medical
leave for a bad back. On June 22, 2009, the district court
granted the Department’s motion to dismiss Payne’s suit
pursuant to Federal Rule of Civil Procedure 12(b)(6). Payne v.
Salazar, 628 F. Supp. 2d 42, 52 (D.D.C. 2009).

The court dismissed Payne’s first retaliation claim on the
ground that she did not also sue on the discrimination claim she
had won before the EEOC administrative judge. According to
the court, “a federal employee who obtains a final administrative
disposition that finds discrimination . . . as to a portion of the
allegations in the EEO Complaint, may [not] challenge in
federal court just those liability findings by the EEOC that are
unfavorable to the employee . . . while preserving those liability
findings that are favorable to her.” Id. at 45-46. Because Payne
sought review only of the claim she lost before the
administrative judge, the court dismissed her suit for “failure to
state a claim.” Id. at 52.

The district court also dismissed Payne’s second retaliation
claim -- which was based on the Interior Department’s January
2008 refusal to assign her light-duty work -- for failure to
exhaust her administrative remedies. Payne conceded that she
had not filed this claim with the Department, but contended it
was unnecessary to do so because the claim was “like or related
to [her September 2004] administrative complaint.” Id. at 51.
The district court rejected that contention, holding that a “‘Title
VII plaintiff is required to exhaust his or her administrative
remedies with respect to each discrete allegedly discriminatory
 5

or retaliatory act.’” Id. (quoting Wada v. Tomlinson, 517 F.
Supp. 2d 148, 183 (D.D.C. 2007)). Payne timely appealed the
dismissal of both claims.

II

This court reviews de novo a dismissal for failure to state a
claim under Rule 12(b)(6). Muir v. Navy Fed. Credit Union,
529 F.3d 1100, 1108 (D.C. Cir. 2008). We consider Payne’s
first claim in Part II.A and her second in Part II.B.

A

The district court dismissed Payne’s first retaliation claim
because she did not also sue on her successful discrimination
claim. The government contends that this result is dictated by
“the plain language” of Title VII, which assertedly makes clear
that federal court review of a final agency decision regarding an
employee’s EEO complaint “is an all-or-nothing proposition.”
Appellee’s Br. 7. We fail to discern such a proposition in the
statutory text.

1. The provision of Title VII that provides federal
employees with a cause of action states: “[A]n employee
. . . aggrieved by the final disposition of his complaint . . . may
file a civil action.” 42 U.S.C. § 2000e-16(c). As the
government concedes, an employee like Payne, who did not win
all of the claims raised in her EEO complaint, is aggrieved by
that disposition. Oral Arg. Recording 9:50-9:55. At the same
time, Payne is in no sense “aggrieved by” the claim she won
before her agency, and there is nothing in the text of
section 2000e-16(c) that requires her to include that claim in a
case she files in court. This circuit, for example, routinely hears
cases brought under statutes authorizing suit by persons
 6

“aggrieved by” agency action.1 Petitioners in such cases
challenge only the parts of agency orders that continue to
aggrieve them, and we have never required such petitioners to
also bring before us the parts of agency orders that they do not
dispute.2

The government is correct that “the language in the statute
explicitly states that it is the final disposition of the complaint
that is actionable; not of the individual claims therein.”
Appellee’s Br. 7. But this only means that the employee cannot
sue until the agency takes final action on all of the claims
contained in her administrative complaint. Cf. Administrative
Procedure Act, 5 U.S.C. § 704 (authorizing judicial review of
“final agency action”); 28 U.S.C. § 1291 (authorizing appellate
review of “final decisions of the district courts”). Section
2000e-16(c) does not say that, once the agency has finally
disposed of the complaint, the employee must then file that same

1
See, e.g., Administrative Procedure Act, 5 U.S.C. § 702 (“A
person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.”); Securities Act
of 1933, 15 U.S.C. § 77i(a) (“Any person aggrieved by an order of the
[Securities and Exchange] Commission may obtain a review of such
order . . . in the United States Court of Appeals for the District of
Columbia.”); Hobbs Administrative Orders Review Act, 28 U.S.C.
§ 2344 (“Any party aggrieved by [a] final order [of specified agencies]
may, within 60 days after its entry, file a petition to review the order
in the court of appeals wherein venue lies.”).
2
See, e.g., Guard Publishing Co. v. NLRB, 571 F.3d 53, 58 (D.C.
Cir. 2009) (reviewing an employer’s challenge to only the unfavorable
portions of an NLRB ruling); Zacharias v. SEC, 569 F.3d 458, 462
(D.C. Cir. 2009) (reviewing one of three parts of an SEC ruling); CF
Indus. Inc. v. STB, 255 F.3d 816, 819 n.1 (D.C. Cir. 2001) (reviewing
only those parts of the STB’s ruling that the petitioner appealed).
 7

“complaint” in court. Instead, it says that she may then file a
“civil action.” 42 U.S.C. § 2000e-16(c).

The Federal Rules of Civil Procedure “govern the procedure
in all civil actions” in federal district courts. FED R. CIV. P. 1.
Federal Rule 2 states that there is only “one form of action -- the
civil action,” and Rule 3 provides that a “civil action is
commenced by filing a complaint with the court.” Rule 8 --
which governs the content of such a complaint -- requires only
“a short and plain statement of the claim showing that the
pleader is entitled to relief.” Nothing in the Federal Rules
suggests that the “complaint” filed in federal court must include
all the claims the plaintiff previously raised in a complaint she
filed with her agency -- let alone those that were satisfactorily
resolved in her favor. Indeed, a complaint filed in federal court
cannot include the latter because “a plaintiff must demonstrate
standing for each claim he seeks to press,” DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 352 (2006), and standing requires
that the plaintiff “suffered an ‘injury in fact,’” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Notwithstanding the way in which the government has
framed the issue, it is not really arguing that an employee’s civil
action must include a claim as to which she does not believe
herself aggrieved. Rather, the government is effectively arguing
that, if the employee wants relief on a claim she lost below, she
must permit the agency to withdraw its final action on the claim
she won, requiring her to prove it again in court. See Appellee’s
Br. 15 (“Payne could bring her retaliation claim if she also
br[ings] her discrimination claim and returns the award that was
already recompensed to her as a result of her EEO complaint.”).
But there is nothing in the statute upon which the government
can hang such a construction. To the contrary, section 2000e-
16(c) authorizes the employee to file in federal court after “final
action taken by a department [or] agency.” Nothing in the
 8

statutory language renders such “final” agency action nonfinal
merely because the employee files a civil action.

We note that the government’s construction of the statute
effectively gives it complete control over the scope of an
employee’s access to the courts. In this case, for example,
Payne filed two separate EEO complaints: the first asserting
discrimination and the second asserting retaliation. Had the
complaints remained separate, even the government’s
construction would have permitted Payne to file a civil action
limited to the retaliation complaint. See Oral Arg. Recording
23:28-23:37 (acknowledgment by government counsel). It is
only because the agency consolidated the complaints, and then
issued a single disposition, that the government contends Payne
must sue on all her claims or none of them. Id. at 21:08-21:19.
Moreover, because EEOC regulations require consolidation in
all cases, even when the complaints are unrelated,3 the
government’s view ensures that every complainant who wins a
partial victory will face the litigation parameters upon which the
government insists. As the government acknowledges, however,
no statutory provision requires the consolidation of separate
complaints of discrimination (or retaliation). Oral Arg.
Recording 20:58-21:07. And nothing in the language of section
2000e-16(c) suggests that the government’s decision to combine
two complaints into one should govern the scope of an
employee’s subsequent lawsuit.

3
See Appellee’s Br. 6 (“If a complainant files more than one
complaint, the EEO is required to consolidate them, even if the
complaints are unrelated.”) (citing 29 C.F.R. § 1614.606); see also
EEOC, EEO Management Directive 110, at 5-13 & n.4 (Nov. 9, 1999)
(requiring consolidation of an employee’s complaints, “[e]ven if the
complaints are unrelated,” because “their resolution in a single
proceeding will make better use of agency and Commission
resources”).
 9

2. In adopting the government’s construction of the statute,
the district court relied in part on the Supreme Court’s
determination, in Chandler v. Roudebush, 425 U.S. 840 (1976),
that the “civil action” referred to in section 2000e-16(c) is a
“trial de novo.” 425 U.S. at 846; see id. (holding that “federal
employees are entitled to a trial de novo of their employment
discrimination claims”). Reasoning that “a trial de novo is
generally understood to mean a de novo judicial examination of
the entire case,” the district court concluded that “[p]ermitting
Plaintiff to obtain partial de novo review on only some issues
. . . is inconsistent with this definition.” Payne, 628 F. Supp. 2d
at 50. This reading misapprehends what the Supreme Court
meant by “trial de novo.”

In Chandler, the plaintiff lost a discrimination claim in an
agency adjudication and then brought suit in federal court
pursuant to section 2000e-16(c). The district court rejected her
motion for discovery, holding that a “trial de novo is not
required . . . in all cases” and that “review of the administrative
record is sufficient if an absence of discrimination is
affirmatively established by the clear weight of the evidence in
the record.” 425 U.S. at 843 (quotation marks omitted).
Concluding that the administrative record affirmatively
established the absence of discrimination, the district court
granted summary judgment for the defendants without
conducting a trial, and the court of appeals affirmed. Id.

The Supreme Court, however, reversed, holding that section
2000e-16(c) gives federal employees in all cases the “right to a
trial de novo” of their Title VII claims. Id. at 848, 864. The
Court’s exploration of the legislative history of the 1972
amendments that extended the protections of Title VII to federal
 10

employees4 makes clear what the Court meant by that phrase.
As the Court explained, Congress “chose to permit de novo
judicial trial of . . . complaints rather than mere judicial review
of employing agency determinations,” id. at 852, thus
“allow[ing] federal employees judicial trials rather than
‘substantial evidence’ review of administrative dispositions.”
Id. at 858. In short, what the Court meant by “trial de novo”
was the traditional federal trial of a civil action -- in contrast to
the limited, deferential review of agency decisionmaking
afforded, for example, under the Administrative Procedure Act,
see 5 U.S.C. § 706. It did not in any way suggest that plaintiffs
in federal civil actions were required to sue on claims previously
resolved in their favor.

In reaching the contrary conclusion in Payne’s case, the
district court cited Chandler’s statement that “‘[n]othing in the
legislative history indicates that the federal-sector “civil action”
was to have [a] chameleon-like character, providing fragmentary
de novo consideration of discrimination claims where
“appropriate,”’” and otherwise providing record review. Payne,
628 F. Supp. 2d at 48 (quoting 425 U.S. at 861). But the
“fragmentary” consideration to which Chandler objected was
not a plaintiff’s decision to sue on only some of her claims.
Rather, it was the lower court’s view that a judge could choose
to apply de novo review in some cases and mere “record
review” in others.5 Chandler rejected this approach, noting that

4
See Equal Employment Opportunity Act of 1972, Pub. L. No.
92-261, 86 Stat. 103.
5
As the Supreme Court noted, the court of appeals’ view was,
essentially, that:

The trial de novo is not required in all cases. . . . If [the
district court] determines that an absence of discrimination is
 11

Congress, “faced [with] a choice between record review of
agency action based on traditional appellate standards and trial
de novo of Title VII claims,” had chosen the latter to govern in
all cases. 425 U.S. at 861.

Finally, the district court emphasized Chandler’s statement
that Congress intended federal employees to have “the same
right to a trial de novo as is enjoyed by private-sector
employees.” Payne, 628 F. Supp. 2d at 48 (quoting 425 U.S. at
848) (emphasis added by district court). The district court
thought that “permitting a federal employee to obtain a trial de
novo only as to certain liability findings” would not give the
federal employee the “same rights,” but rather would provide
“greater rights than are available to a private sector employee.”
Id. at 50. This was so, the court said, because “[e]mployees in
the private sector cannot obtain a legally-binding administrative
decision, and so must litigate their entire EEO complaint in
federal court if conciliation is not reached below.” Id. at 50.

But this reads Chandler’s statement out of context. The
Supreme Court did not suggest that the 1972 amendments were
intended to equalize the position of federal and private-sector
employees in every respect,6 but rather to ensure that the former

affirmatively established by the clear weight of the evidence
in the record, no new trial is required. If this exacting
standard is not met, the Court shall, in its discretion, as
appropriate, remand, take testimony to supplement the
administrative record, or grant the plaintiff relief on the
administrative record.

425 U.S. at 860-61 (internal quotation marks omitted).
6
Indeed, the Court could not have made such a suggestion given
the text of Title VII. Compare 42 U.S.C. § 2000e-16(b) (granting the
EEOC “authority to enforce” the federal employment provisions of
 12

had the same right as the latter to a trial de novo. The Court’s
exposition of the legislative history made this clear, explaining
that “equal treatment of private-sector and federal-sector
complainants” meant that both “were entitled to plenary
adjudication of their claims by a federal district court, rather
than mere appellate review on a substantial-evidence basis
following agency adjudication.” Chandler, 425 U.S. at 857.7

In sum, an employee’s right to trial de novo -- whether her
employer is the federal government or a private company --
means that she is entitled to a plenary trial of whatever claims
she brings to court. It does not mean that she must sue on
claims she has no interest in pursuing. Indeed, were we to
impose such a requirement, we would ourselves be treating
federal employees differently than private-sector employees.
After all, Title VII does not require a private-sector employee,
who complains to her employer about two acts of discrimination
but receives voluntary recompense for (only) one, to sue on both
claims. See 42 U.S.C. § 2000e-5 (authorizing private-sector
employees to bring civil actions for violations of Title VII).

Title VII “through appropriate remedies . . . [and to] issue such rules,
regulations, orders and instructions as it deems necessary and
appropriate”), with id. § 2000e-5 (authorizing the EEOC to use only
“informal methods of conference, conciliation, and persuasion” with
private employers).
7
As the Supreme Court noted, the full text of the provision
affording federal employees the right to file a “civil action” states that
an aggrieved employee “may file a civil action as provided in section
2000e-5.” 42 U.S.C. § 2000e-16(c) (emphasis added); see Chandler,
425 U.S. at 845. Section 2000e-5, in turn, is the civil action provision
for private-sector employees, which the Court had previously held
“accords private-sector employees the right to de novo consideration
of their Title VII claims.” Chandler, 425 U.S. at 844 (citing
Alexander v. Gardner-Denver Co., 425 U.S. 36 (1974)).
 13

3. Although it acknowledges that our decision in Scott v.
Johanns, 409 F.3d 466, is not “directly on point,” the
government contends that the “general principles established” in
that case support its construction of section 2000e-16(c).
Appellee’s Br. 9. We disagree.8

Unlike Payne, the plaintiff in Scott did not sue on a Title
VII claim that an agency had rejected. Instead, Scott sued on a
claim that the agency had accepted, challenging only the
sufficiency of the remedy the agency provided. 409 F.3d at 468.
Scott argued that the court should defer to the agency’s liability
determination, but that it should review the remedy de novo. Id
at 469-70. We rejected Scott’s argument for two principal
reasons, neither of which casts doubt on our acceptance of
Payne’s.

First, we found it “[c]ritical” that:

[S]ection 2000e-5(g), one of the provisions applied to
federal sector suits by sections 2000e-16(c) and (d),
states: “[i]f the court finds that the respondent has
intentionally engaged in or is intentionally engaging in
an unlawful employment practice,” it may order
various specified remedies, id. § 2000e-5(g)(1). Thus,
in a federal-sector Title VII case, any remedial order
must rest on judicial findings of liability, and nothing
in the statute’s language suggests that such findings are
unnecessary in cases where a final administrative
disposition has already found discrimination and
awarded relief.

8
The government also cites cases from other circuits that reached
the same result as Scott. See Timmons v. White, 314 F.3d 1229 (10th
Cir. 2003); see also Laber v. Harvey, 438 F. 3d 404 (4th Cir. 2006).
Like Scott, these cases are inapposite for the reasons discussed below.
 14

409 F.3d at 470-71 (second emphasis added). In short, Scott
required the plaintiff to prove liability in court, notwithstanding
the plaintiff’s success on that issue before the agency, because
Title VII expressly predicates a court-ordered remedy on a
judicial finding of liability. By contrast, in Payne’s situation
there is no statutory language that predicates a court’s decision
regarding one independent claim on its decision regarding
another.

Second, after noting Chandler’s discussion of the right of
an employee to a trial de novo, Scott held: “Under Title VII,
federal employees who secure a final administrative disposition
finding discrimination and ordering relief have a choice: they
may either accept the disposition and its award, or file a civil
action, trying de novo both liability and remedy. They may not,
however, seek de novo review of just the remedial award.” Id.
Thus, we barred a plaintiff from splitting a single claim into
separate determinations of liability and remedy, with de novo
review for the latter alone. But our opinion did not suggest that
we would also require a plaintiff to sue on a separate claim she
did not want to pursue in order to obtain relief on one she did.

4. Finally, the government warns that, “[s]hould this Court
accept [a]ppellant’s position and allow administrative
complainants to advance only the claims they find unfavorable,
a serious chilling effect on the government’s ratifying of adverse
administrative findings could result.” Appellee’s Br. 15 n.5. If
the “agency believes it is liable on one claim, but not the other,”
the government posits, “[w]hy would it rule in complainant’s
favor on the one claim for which it believes it is liable if it will
be precluded from challenging that finding in federal court?” Id.

The government can find the answer to its question in the
inscription outside the Attorney General’s Office at the
Department of Justice: “The United States wins its point
 15

whenever justice is done its citizens in the courts.” Brady v.
Maryland, 373 U.S. 83, 87 (1963). The same is true of justice
done its employees in the agencies. If an agency “believes it is
liable” on a claim, Title VII requires it to rule in the
complainant’s favor without regard to tactical litigation
considerations. See 42 U.S.C. § 2000e-16(e) (declaring that
“[n]othing contained in this Act shall relieve any Government
agency or official of its or his primary responsibility to assure
nondiscrimination in employment”).

B

The district court also dismissed Payne’s second retaliation
claim, which was based on the Interior Department’s January
2008 refusal to provide her with light-duty work. That claim
was neither submitted to nor ruled on by the Department, and
the court dismissed it because Payne failed to exhaust her
administrative remedies. Payne, 628 F. Supp. 2d at 51-52.

As we have held and Payne concedes, Title VII
“[c]omplainants must timely exhaust the[ir] administrative
remedies before bringing their claims to court.” Bowden v.
United States, 106 F.3d 433, 437 (D.C. Cir. 1997); see
Appellant’s Br. 14. Payne further concedes that she never filed
her second retaliation claim with the Department. Oral Arg.
Recording 3:14-3:19. Nonetheless, she contends that her civil
action is not barred, citing a line of cases that permits federal
employees to litigate unfiled claims that are “like or reasonably
related to” claims they did file with their agencies. Appellant’s
Br. 14 (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C.
Cir. 1995)). The district court rejected this contention, holding
that National Railroad Passenger Corp. v. Morgan, 536 U.S.
101 (2002), invalidated those precedents. “[T]he Supreme
Court’s decision in Morgan,” the court said, “rejected the
‘continuing violation’ theory that would permit plaintiffs to
 16

recover for discrete acts of discrimination and retaliation that
were not exhausted but were ‘sufficiently related’ to exhausted
claims.” Payne, 628 F. Supp. 2d at 51 (quotation marks
omitted).

We need not decide whether Morgan did in fact overtake
that line of cases because Payne acknowledges that, for a charge
to be regarded as “reasonably related” to a filed charge under
that doctrine, it must “‘[a]t a minimum . . . arise from the
administrative investigation that can reasonably be expected to
follow the charge of discrimination.’” Appellant’s Br. 14-15
(quoting Park, 71 F.3d at 907) (internal quotation marks
omitted). This connection is necessary to give the agency “‘an
opportunity to resolve [the] claim administratively before [the
employee] file[s] her complaint in district court.’” Wiley v.
Glassman, 511 F.3d 151, 160 (D.C. Cir. 2007) (quoting Weber
v. Battista, 494 F.3d 179, 184 (D.C. Cir. 2007)). But as Payne
conceded at oral argument, her claim concerning the retaliatory
conduct that took place in January 2008 could not possibly have
“arisen from the administrative investigation” that followed the
EEO complaints she filed with Interior in 2004. Oral Arg.
Recording 4:02-4:16. This is necessarily so because the
administrative investigation of those complaints ended in
September 2007, well before January 2008. Hence, Payne failed
to exhaust her second retaliation claim even on her own theory,
 17

and the district court was correct to dismiss that claim. See Artis
v. Greenspan, 158 F.3d 1301, 1303 (D.C. Cir. 1998).9

III

For the foregoing reasons, we reverse the district court’s
dismissal of Payne’s first retaliation claim and affirm its
dismissal of her second.

So ordered.

9
Payne’s citation to Saksenasingh v. Sec’y of Educ., 126 F.3d 347
(D.C. Cir. 1997), does not support her contention that she should be
relieved of the obligation to exhaust her administrative remedies.
Saksenasingh, which addressed exhaustion in the context of the breach
of a settlement agreement, did not discuss the requirement that unfiled
“Title VII claims must arise from the administrative investigation that
can reasonably be expected to follow the charge of discrimination.”
Park, 71 F.3d at 907 (quotation marks omitted).