United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2009 Decided February 5, 2010
No. 08-5494
RICHARD MILLER,
APPELLANT
v.
DEBORAH A. P. HERSMAN, CHAIRMAN,
NATIONAL TRANSPORTATION SAFETY BOARD,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01071-GK)
David A. Young argued the cause for the appellant. Carl S.
Nadler was on brief.
Brian P. Hudak, Assistant United States Attorney, argued
the cause for the appellee. R. Craig Lawrence, Assistant United
States Attorney, was on brief.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Richard
Miller, a former employee of the National Transportation Safety
Board (NTSB or Board), appeals the district court’s judgment in
his employment discrimination suit. Miller v. Rosenker, 578 F.
2
Supp. 2d 107 (D.D.C. 2008). Miller challenges the district
court’s decision insofar as it (1) granted summary judgment on
Count I and Count II alleging discriminatory non-promotion on
the ground that he failed to timely seek equal opportunity
employment counseling from the Board and (2) dismissed Count
III alleging discriminatory treatment on the ground Miller
conceded arguments the Board raised in support of dismissal.
Because genuine issues of material fact exist regarding Count I
and Count II, we reverse the summary judgment on each. We
also reverse the court’s dismissal of Count III because Miller did
not, as the district court concluded, concede arguments raised by
the NTSB.
I.
Miller, who was born in 1949, began working at the NTSB
in June 1999 as a financial management specialist in the NTSB’s
Office of Chief Financial Officer in Washington, D.C. His
employment was terminated on June 30, 2006.
Miller initially filed a discrimination complaint with the
NTSB’s Equal Employment Opportunity (EEO) office on March
13, 2002, alleging the NTSB discriminated against him by (1)
failing to select him for five different positions, (2) failing to
provide a position description detailing the duties of his current
position, (3) assigning him a lower performance evaluation than
warranted and (4) denying him the use of office equipment and
resources. The Board dismissed the complaint and the Equal
Employment Opportunity Commission (EEOC) affirmed the
dismissal in March 2006. Meanwhile, Miller filed a second EEO
complaint on January 21, 2006, alleging additional instances of
discrimination, retaliation and harassment.
Miller filed this action on June 9, 2006, asserting a single
discrimination count based on his non-selection for the position
of Budget Officer. When the NTSB failed to act on his second
EEO complaint within 180 days, Miller filed an amended
3
complaint in the district court, alleging eight counts of sex and
age discrimination or retaliation, including the three counts
(Counts I, II and III) which are at issue in this appeal.
Count I alleges discriminatory non-selection for the Budget
Officer position, which was awarded to a 50-year old female,
Sylvia Livingston, on October 23, 2001. According to the
complaint, Miller did not learn the selectee was a female until
sometime in December 2001.
Count II alleges discriminatory non-selection for one of two
“Special Assistant” vacancies, which were announced in early
2001. The two selectees, Barbara Czech and David Mayer (both
then under 40 years of age), were initially appointed to fill the
slots temporarily—from about March 3 to May 5, 2001—and
were appointed permanently on April 30, 2001. The complaint
alleges Miller first learned of their temporary selection on April
10, 2001 and of their permanent selection in May 2001.
Count III alleges the NTSB discriminatorily torpedoed his
performance appraisal by failing to provide him in advance with
an accurate job description (which “allowed [the appraiser] to
evaluate his performance arbitrarily and discriminatorily,” Am.
Compl. ¶ 860), lowered his performance appraisal in retaliation
for his “EEO activity,” id. ¶ 85, transferred his duties to other
employees and created a hostile work environment. See id. ¶¶
78-87.
On February 27, 2007, the NTSB filed a Motion to Dismiss
or, in the Alternative, for Summary Judgment (Motion to
Dismiss), supported by a statement of facts not in dispute, a
supporting memorandum and exhibits. See Motion to Dismiss,
Miller v. Rosenker, C.A. No. 06-1071 (Feb. 27, 2007). Miller
filed an Opposition to the Motion to Dismiss (Opposition), along
with his own supporting memorandum and exhibits. See
Opposition, Miller v. Rosenker, C.A. No. 06-1071 (Nov. 19,
2007).
4
On September 29, 2008, the district court granted summary
judgment to the NTSB on Counts I and II on the ground that
Miller cited no evidence to dispute material facts established by
the NTSB’s evidence, namely, that the date Miller sought EEO
counseling was more than 45 days after he learned the positions
had been awarded to other individuals, in violation of EEOC
regulation 1614.105(a), 29 C.F.R. § 1614.105(a). Miller, 578 F.
Supp. 2d at 113-14. The court dismissed the remaining six
counts, including Count III, for failure to state a claim,
concluding Miller failed to respond to arguments raised by the
NTSB and thereby conceded them. Id. at 111-12. Miller filed a
timely notice of appeal, challenging only the summary judgment
on Counts I and II and the dismissal of Count III.
II.
We review de novo both a summary judgment and a
dismissal for failure to state a claim. Chambers v. U.S. Dep’t of
Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (citing Islamic Am.
Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)).
“Summary judgment is appropriate ‘if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.’ ”
Quigley v. Giblin, 569 F.3d 449, 453 (D.C. Cir. 2009) (quoting
Fed. R. Civ. P. 56(c)). In assessing whether a genuine issue
exists, we “view the evidence in the light most favorable to the
nonmoving party.” Id. (citing U.S. Postal Serv. v. Am. Postal
Workers Union, 553 F.3d 686, 692 (D.C. Cir. 2009)). We
address first the two counts alleging discriminatory non-
selection.
A. Counts I and II
In its Motion to Dismiss, the NTSB asserted it was entitled
to summary judgment on both Count I and Count II because
Miller failed to exhaust his administrative remedies in that he did
5
not consult an EEO counselor within 45 days of the alleged
discriminatory actions pursuant to EEOC regulation 1614.105.
Regulation 1614.105 requires that an “[a]ggrieved person[] who
believe[s he] ha[s] been discriminated against on the basis of . . .
sex [or] age . . . must consult a Counselor prior to filing a
complaint in order to try to informally resolve the matter” and
“must initiate contact” with the counselor “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), (a)(1) (2001). Under
subsection (a)(2), however, “the time will be tolled if he ‘did not
know and reasonably should not have [] known that the
discriminatory matter or personnel action occurred.’ ” Stewart
v. Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003) (quoting 29
C.F.R. § 1614.105(a)(2)) (alteration in original). The NTSB has
maintained that the 45-day period began to run for the Special
Assistant positions no later than early May 2001, when Miller
learned the identities of the two selectees, and for the Budget
Officer position as of October 24, 2001, the date he was told he
had not been selected for the post. Thus, the NTSB asserts,
Miller failed to comply with the consultation requirement
because each 45-day period expired before January 2, 2002,
when he first sought counseling from NTSB EEO Director and
Diversity Program Manager Fara Guest. See Decl. of Fara D.
Guest, Motion to Dismiss ex. 1, ¶ 3 (“Richard Miller . . . first
initiated contact with me and expressed the intention to begin the
EEO counseling process no earlier than January 2, 2002.”).1 The
1
Although Guest is not herself a counselor, the EEOC “has
consistently held that a complainant satisfies the criterion of EEO
counselor contact by contacting an agency official logically connected
with the EEO process, even if that official is not an EEO counselor,
and by exhibiting an intent to begin the EEO process.” Osuagwu v.
Peake, No. 0120081307, 2008 WL 2264405, at *1 (EEOC May 20,
2008) (citations omitted).
6
district court agreed with the Board as to both Count I and Count
II and granted summary judgment on each. Addressing the two
counts in order, we reverse the court’s summary judgment on
each.
With regard to Count I, the NTSB argued that, because it is
undisputed that Miller learned on October 24, 2001 that he had
not been selected for the Budget Officer position, his counseling
request on January 2, 2002, which came more than 45 days
thereafter, was necessarily tardy. See Motion to Dismiss Mem.
at 8, Miller v. Rosenker, C.A. No. 06-1071 (Feb. 27, 2007)
(Motion to Dismiss Memo.). We disagree. It is indeed
undisputed that Miller was informed on October 24, 2001 that he
had not been selected for the Budget Officer position. See
Motion to Dismiss Memo. 7-8; id. ex. 5 (Oct. 25, 2001 email
from Miller to NTSB Acting CFO Don Libera stating: “You
seem to be saying in yesterday’s meeting that you and Dave
didn’t think I had sufficient supervisory or managerial
experience for the Budget Officer’s job.”); id. ex. 4 (Oct. 24,
2001 email to Miller from NTSB Human Resources Specialist
Bernie Moffett offering to provide list of eligible candidates with
all of the names redacted “except for the name of the person
selected”). But this does not settle the matter. The complaint
alleges that, although “a female was selected in October 2001”
to fill the Budget Officer position, Miller “only discovered this
fact in December 2001.” Am. Compl. ¶ 18. Thus, Miller argues,
it was only in December 2001—fewer than 45 days before his
January 2, 2002 meeting with Guest—that he “reasonably
should . . . have . . . known that the discriminatory matter . . .
occurred,” 29 C.F.R. § 1614.105(a)(2), that is, that he had been
passed over on account of his sex, and that the period was
therefore tolled until then. See Appellant’s Br. 16-18; cf.
Johnson v. Runyon, 47 F.3d 911, 921 (7th Cir. 1995) (45-day
period did not commence until plaintiff learned allegedly
discriminatory reason (hypertension) her employment
7
application was rejected). The NTSB failed to rebut Miller’s
allegation on summary judgment.
“As the party moving for summary judgment, the [NTSB]
bears the initial burden of identifying evidence that demonstrates
the absence of any genuine issue of material fact.” Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). The Board did not carry
its burden because it offered no evidence to resolve the disputed
material issue of when Miller knew or reasonably should have
known of the alleged discrimination. The Board cited no
evidence demonstrating that Miller knew the identity of the
selectee—or her gender—as of October 24, 2001 or even
“[s]hortly thereafter,” as it now claims, Appellee’s Br. 5. The
only evidence the Board offers is the earlier described October
24, 2001 email to Miller from NTSB Human Resources
Specialist Bernie Moffett, Motion to Dismiss ex. 4, at 1, offering
to forward the redacted eligible candidate list, as well as a copy
of the list itself which, the Board asserts in its brief, Miller
“produced in the administrative phase of this action.” See
Appellee’s Br. 5 (citing Motion to Dismiss ex. 6 (copy of
redacted “Certificate of Eligibles” with attached post-it note
bearing handwritten notation “Copy for Richard Miller”)).
Neither document, however, establishes with any precision the
date on which the Board sent or Miller received his copy of the
list—only that it was sometime between October 24, 2001 and
the undisclosed date in 2002 when Miller produced the document
during the administrative proceedings. On the current record,
then, he may well not have received it until December 2001
when, according to the complaint, he was first aware of the
successful candidate’s gender.
Admittedly, to toll the 45-day limitation period under
regulation 1614.105(a)(2), the plaintiff has a responsibility, when
possible, to further investigate a personnel action in order to
determine whether the action was discriminatory. See, e.g.,
8
Pacheco v. Rice, 966 F.2d 904, 907 (5th Cir. 1992) (declining to
apply tolling provision where Hispanic employee claimed he did
not learn non-Hispanic employee was treated more favorably
until three years after incident because “[t]he requirement of
diligent inquiry imposes an affirmative duty on the potential
plaintiff to proceed with a reasonable investigation in response
to an adverse event”); Caprio v. Peters, C.A. No. 08-2555, 2009
WL 2893196, at *2 (3d Cir. Sept. 10, 2009) (no tolling where
employee claimed he did not learn until three years after transfer
it was discriminatorily motivated—when colleague informed him
others similarly situated had not been transferred—noting
plaintiff “d[id] not contend that defendant prevented his access
to information regarding how other mobility-restricted
employees were treated, or that such information was not
reasonably discoverable”); Silver v. Leavitt, C.A. No. 05-0968,
2006 WL 626928, at *8 (D.D.C. Mar. 13, 2006) (tolling
appropriate where “plaintiff had no way of knowing” date
selectees were hired as such information was not made public
and plaintiff was out of office for extended period of time);
Carroll v England, 321 F. Supp. 2d 58, 66 (D.D.C. 2004) (no
tolling where employee had “[c]onstructive knowledge” of
discriminatory act); Hill v. Runyon, 959 F. Supp. 488, 491-92
(N.D. Ill. 1997). Presented with Moffett’s October 24, 2001
offer to provide the name of the person selected for the position,
Miller might well have been able, with little effort, to obtain the
information he claims was necessary to begin the 45-day period
shortly thereafter. Nonetheless, it is the defendant’s burden to
show the plaintiff did not timely contact an EEO counselor,
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997),
and the NTSB has offered scant evidence regarding when Miller
first initiated contact with Ms. Guest. See Decl. of Fara D.
Guest, Mot to Dismiss Ex. 1, ¶ 7 (stating she “d[id] not recall the
exact date that Mr. Miller contacted [her] and expressed the
intention to begin the EEO counseling process”). Because the
9
NTSB failed to carry its burden, the district court erred in
granting summary judgment to the Board on Count I.
The court also erred in granting summary judgment on
Count II—alleging discriminatory non-selection for the Special
Assistant positions. Because Miller’s complaint acknowledges
that he learned the identity of the two successful Special
Assistant candidates in April and May 2001, the Board again
asserts his failure to seek counseling before January 2002
violated regulation 1614.105(a)(2). Miller’s sworn declaration,
however, states that he “first contacted Ms. Guest about [his]
first complaint . . . after learning [he] had not been selected for
the CFO position,”—which he is “confident was in early
April”—and that he “continued to contact Ms. Guest on further
non-selections” and “continued to push Ms. Guest to move
forward” until “[i]n November, she finally agreed to request a
counselor.” Decl. of Richard L. Miller ¶¶ 13, 15 (attached to
Opposition) (Miller Decl.). Viewed in the light most favorable
to Miller, Quigley, supra, this evidence supports Miller’s claim
that he first presented his discrimination claim to Guest in Spring
2001 and sought to move forward on it but that Guest did not
contact a counselor until November 2001. Guest’s statements
notwithstanding, summary judgment was therefore inappropriate.
See Arrington v. United States, 473 F.3d 329, 337 (D.C. Cir.
2006) (“[A] plaintiff may defeat a summary judgment granted to
a defendant if the parties’ sworn statements are materially
different.”).
B. Count III
Count III of Miller’s complaint alleges the NTSB
discriminated against him when it failed to provide an accurate
job description in advance of his performance appraisal (thereby
allowing the appraisal to be performed “arbitrarily and
discriminatorily”), lowered his evaluation in retaliation for his
“EEO activity,” transferred many of his duties to younger and/or
female employees (replacing his duties with “functions
10
previously performed by lower graded employees”) and
generally created a hostile work environment. See Am. Compl.
¶¶ 78-87. The district court dismissed Count III on the ground
that Miller failed to respond to—and therefore conceded—two
arguments the NTSB raised in opposition to the count, namely,
that Miller (1) “fail[ed] to timely exhaust his administrative
remedies for Count[] III” and (2) “raised claims already pending
before th[e] Court in a separate action.” 578 F. Supp. 2d at
111-12. We conclude that Miller conceded neither argument.
As to the first argument, NTSB did not assert in its Motion
to Dismiss that Miller had failed to exhaust his administrative
remedies for the sex and age discrimination claims in Count
III—only for the hostile work environment claim and, perhaps,
the retaliation claim therein (neither of which he presses on
appeal, see Appellant’s Br. 4 n.2, 32 n.10). See Motion to
Dismiss Memo. 10. The second referenced argument—the
identity of issues in Miller’s two district court actions—Miller
did directly address in his Opposition. See Miller Decl. ¶ 45.
That Miller’s legal position may not have been meritorious, as
the NTSB contends, does not alter the fact that he did indeed
respond to the Board’s parallel case argument and therefore did
not concede it.2
For the foregoing reasons, we reverse the district court’s
summary judgment on Count I and Count II and its dismissal of
Count III. Accordingly, we remand for further proceedings
consistent with this opinion.
So ordered.
2
In any event, the parallel action—Miller v. Rosenker, C.A. No.
05-2478—had been dismissed on July 25, 2008 and a motion for
reconsideration of the dismissal denied on September 4, 2008, more
than three weeks before the district court’s decision in this case.