TREVOR N. McFADDEN, United States District Judge.
Felicia Hardy and Barry Pope seek $10 million in this Title VII retaliation case against Jerome Powell, whom they have sued in his official capacity as Chairman of the Board of Governors of the Federal Reserve System.
Mr. Hardy worked for the Board of Governors of the Federal Reserve System as a law enforcement officer from 2011 to 2016. Compl. ¶ 22. In 2015, Mr. Hardy participated in tryouts for a new bike patrol unit. Opp. to Mot. Summary J. 5. Although he scored 95% on speed test, he scored 30% on a cone course test. Mot. Summary J. Ex. K. His supervisor, Lieutenant Kelly Graves, gave him a 100% recommendation, and he also earned a 100% "D.C. Code Score." Id.; see also Opp. to Mot. Summary J. 5. Mr. Hardy's overall score of 81% represents the average of these four scores and placed him 17 out of 21 tryout participants. See Mot. Summary J. Ex. K. Nine participants, including three female officers, were selected for the bike team, but Mr. Hardy was not selected. Opp. to Mot. Summary J. 5.
In June 2015, Mr. Hardy contacted the Board's Employee Relations office to discuss his concern that female officers were favored over him in the formation of the bike team. Id. at 6.
On March 14, 2016, Mr. Hardy submitted a resignation letter:
Id. Ex. 25. Tragically, on March 28, Mr. Hardy committed suicide after recording an audio note explaining his frustrations with Lt. Graves and his sense that he could never advance in his career. Id. at 11.
In April 2016, the Plaintiffs initiated an EEO complaint on behalf of Mr. Hardy's estate, alleging that discrimination and retaliation had driven Mr. Hardy to resign his position and take his own life. Id. at 11-12. The Board dismissed their complaint because Mr. Hardy's estate lacked standing. Id. at 26-27. The Plaintiffs then sued the Chairman of the Board of Governors in federal court, alleging that the Board violated Title VII by committing sex discrimination and by retaliating against Mr. Hardy for engaging in activity protected by Title VII. The Defendant moved to dismiss the Complaint. In response, the Plaintiffs dropped their claims of sex discrimination but added new allegations
To prevail on a motion for summary judgment, a movant must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is material if it could alter the outcome of the suit under the substantive governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the party seeking summary judgment makes this showing, the non-moving party bears the burden of setting forth "specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
"Aggrieved persons who believe they have been discriminated against ... must consult a Counselor prior to filing a [formal administrative] complaint in order to try to informally resolve the matter." 29 C.F.R. § 1614.105(a).
The Plaintiffs claim that Lt. Graves discriminated against Mr. Hardy for engaging in Title VII activity. To satisfy the counseling requirement for this claim, which would be the first step toward showing exhaustion, Mr. Hardy would have had to believe that Lt. Graves retaliated against him and would have had to consult with an EEO Counselor about the alleged retaliation. This he did not do.
The Plaintiffs seek to satisfy the counseling requirement in three ways. First, they note that Mr. Hardy contacted EEO Counselor Andre Smith. Opp. to Mot. Summary J. 23-24. Second, they note that Mr. Hardy complained about unfair treatment in a letter that he sent to Gina Lewis, who worked in Employee Relations. Id. at 24-26.
But none of this shows Mr. Hardy believed that Lt. Graves retaliated against him and that he consulted with an EEO Counselor about the problem. Although Mr. Hardy complained to Mr. Smith and Ms. Lewis about sex discrimination, he did not complain that Lt. Graves mistreated him in retaliation for engaging in Title VII activity. The Plaintiffs do not allege that Mr. Hardy complained to Mr. Smith about retaliation. See Opp. to Mot. Summary J. 23-24. In fact, they allege that the retaliation of which they complain took place after Mr. Hardy contacted Mr. Smith and in response to that contact. See id. at 6.
The Plaintiffs do claim that Mr. Hardy's letter to Ms. Lewis complained about Lt. Graves retaliating against him for Title VII activity. Pls.' Response to Def.'s Statement of Undisputed Material Facts ¶ 21. But the letter does not reference retaliation, allege that Lt. Graves treated Mr. Hardy differently because of his Title VII activity, or even suggest that Lt. Graves knew of Mr. Hardy's Title VII activity. See Opp. to Mot. Summary J. Ex. 18. To the contrary, the letter states that Lt. Graves mistreated Mr. Hardy because of his sex and that Mr. Hardy felt clear Lt. Graves "was coming for [him] personally" even before he engaged in Title VII activity. Opp. to Mot. Summary J. Ex. 18, 1. Thus, the record shows that Mr. Hardy did not initiate counseling for retaliation and suggests that he did not believe the treatment he experienced was retaliation for Title VII activity. This is fatal to the Plaintiffs' retaliation claim. One can only sue for the specific Title VII violations that were complained of to one's employer. Nurriddin, 382 F.Supp.2d at 92. Swapping Title VII horses midstream frustrates the employer's ability to address actual misconduct before litigation becomes necessary and increases the time and expense involved in defending against frivolous allegations.
As for the Plaintiffs' argument that they have satisfied the counseling requirement on Mr. Hardy's behalf, it is inconsistent with the requirement that "[a]ggrieved persons who believe they have been discriminated against" undergo counseling. See 29 C.F.R. § 1614.105(a). The Plaintiffs emphasize that Title VII defines "person" broadly to include governments, agencies, unions, companies, and, most importantly here, legal representatives. 42 U.S.C. § 2000e(a). But no one disputes that the Plaintiffs are persons. The question is whether they have received counseling as "[a]ggrieved persons who believe they have been discriminated against." And the Plaintiffs do not allege that Lt. Graves discriminated against them, but that he discriminated against Mr. Hardy for engaging in Title VII activity. Thus, they cannot satisfy the counseling requirement. This conclusion follows from the plain language of 29 C.F.R. § 1614.105(a).
Perhaps in recognition of their textual argument's weakness, the Plaintiffs suggest two other reasons that their initiation of counseling should satisfy 29 C.F.R. § 1614.105(a). First, they worry that requiring the aggrieved person to initiate counseling would prevent justice from being done when employees murder their colleagues. Opp. to Mot. Summary J. 27-28.
Neither of these concerns swayed the court in what appears to be the only judicial opinion to have decided this question.
Wright did not insist, as the Plaintiffs do, that Title VII provides a necessary remedy for murder. But if a Title VII claim were necessary to promote justice, the problem could likely be resolved by an equitable doctrine such as estoppel since exhaustion in the Title VII context is not jurisdictional but functions like a statute of limitations. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). And Wright shows that, contrary to the Plaintiffs' view, precedents allowing a decedent's estate to pursue Title VII claims that the decedent initiated while still alive are distinguishable from situations like their own. This makes sense because an employee must satisfy the counseling requirement to initiate a Title VII claim, and once that requirement is satisfied it will not pose a bar to litigation.
For the reasons stated above, I conclude that the Plaintiffs have failed to satisfy Title VII's exhaustion requirements. Thus, the Defendant's Motion for Summary Judgement will be granted. A separate order will issue.