COLLEEN KOLLAR-KOTELLY, District Judge.
Bassem Youssef ("Youssef"), an employee of the Federal Bureau of Investigation (the "FBI"), brings this action against the United States Attorney General (the "Attorney General") under Title VII of the Civil Rights Act of 1964 ("Title VII").
Currently before the Court is the Attorney General's [21] Motion for Judgment on the Pleadings or, Alternatively, Summary Judgment ("Motion for Summary Judgment"). The Attorney General contends that Youssef cannot pursue his non-selection claims in this case because he failed to exhaust his administrative remedies. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole,
Sometime in September 2009, the FBI announced a vacancy for the Assistant Section Chief in the Counterterrorism Division's Communications Exploitation Section. Def.'s Stmt. ¶ 1; Pl.'s Resp. Stmt. ¶ 1. Youssef applied for the position, but, on November 24, 2009, he was informed that he had not been selected. Def.'s Stmt. ¶ 1; Pl.'s Resp. Stmt. ¶ 1. Youssef commenced this Title VII action on July 25, 2011, claiming that his non-selection was discriminatory based on his Egyptian-national origin and retaliatory due to his participation in prior Equal Employment Opportunity ("EEO") activity. See Compl., ECF No. [3], ¶¶ 65-72. Youssef's prior EEO activity included a separate lawsuit brought in this Court. See generally Youssef v. FBI, 687 F.3d 397 (D.C.Cir. 2012).
On October 26, 2009, Youssef received a copy of his 2009 Performance Appraisal Report. Def.'s Stmt., Ex. 1 (Request for Counseling) at 1. On November 12, 2009, he initiated counseling based on his performance downgrade. Id.
On November 24, 2009, Youssef learned that he was not selected for the Assistant Section Chief position in the Communications Exploitation Section. Def.'s Stmt. ¶ 1; Pl.'s Resp. Stmt. ¶ 1. When Youssef met with an EEO counselor on December 1, 2009, the counseling session covered both Youssef's performance downgrade and his non-selection for the Assistant Section Chief position. Def.'s Stmt. ¶ 3 & Ex. 2 (Report of Counseling) at 5-6; Pl.'s Resp. Stmt. ¶ 3. At the time, Youssef asserted that his non-selection was based upon his prior EEO activity. Def.'s Stmt., Ex. 2 (Report of Counseling) at 4, 6.
Subsequent counseling sessions addressing Youssef's performance downgrade and his non-selection were held through February 2010. Id. at 6-8. At the final session on February 2, 2010, Youssef was accompanied by his legal counsel. Id. at 8. As in prior sessions, the discussion touched on both personnel actions challenged by Youssef — i.e., his performance downgrade and his non-selection. Id. Ultimately, however, the participants were unable to resolve Youssef's concerns. Id. Accordingly, at the conclusion of the session, the EEO counselor issued Youssef a notice of his right to file a formal administrative complaint and advised Youssef that he had fifteen days to file. Def.'s Stmt. ¶ 4; Pl.'s Resp. Stmt. ¶ 4. Youssef was warned that "[t]he complaint must be specific and encompass only those matters discussed [during the counseling sessions]." Def.'s Stmt., Ex. 3 (Notice of Right to File Compl.) at 1. The EEO counselor offered Youssef assistance in preparing a formal complaint, but Youssef declined the offer. Def.'s Stmt. ¶ 4; Pl.'s Resp. Stmt. ¶ 4.
Youssef, through counsel, filed a formal administrative complaint on February 16, 2010 — within the fifteen-day window. Def.'s Stmt. ¶ 5; Pl.'s Resp. Stmt. ¶ 5. Youssef's complaint identified the following four acts as the bases for his complaint:
On February 24, 2010, the FBI's EEO Office informed Youssef, through his counsel, that his administrative complaint was under "review" and that he would be informed at a later date "[a]s to which bases and allegations of discrimination" would be accepted for investigation. Pl.'s Resp. Stmt. ¶ 45; Def.'s Reply Stmt. ¶ 45. On March 23, 2010, the FBI's EEO Office, acting on its own accord, solicited clarification from Youssef concerning the scope of his administrative complaint. Pl.'s Resp. Stmt. ¶ 48; Def.'s Reply Stmt. ¶ 48. The EEO Office asked for clarification about the scope of Youssef's hostile work environment claim:
Pl.'s Resp. Stmt., Ex. 1 (Mar. 23, 2010 E-mail) at BY 00029-00030. The EEO Office also had the following to say about Youssef's non-selection claim:
Id. at BY 00030. The EEO Office warned Youssef that if the requested information was not provided within fifteen days, Youssef's entire complaint could be dismissed. Id. (citing 29 C.F.R. § 1614.107(a)(7)).
Youssef, through his counsel, responded to the EEO Office's request for additional information on April 6, 2012, before the FBI had started its investigation. Pl.'s Resp. Stmt. ¶¶ 51, 56; Def.'s Reply Stmt. ¶¶ 51, 56. With respect to Youssef's hostile work environment claim, Youssef stated that he could not "provide ... the details [the FBI] requested of `all' the incidents," but he nonetheless provided eight "examples." Pl.'s Resp. Stmt., Ex. 1 (Apr. 6, 2010 E-mail) at BY 00028. One "example" was described as follows:
Id. Youssef also thanked the EEO Office for asking about his non-selection and "ask[ed] that [the EEO Office] ... include this claim in the current EEO formal complaint." Id.
On April 29, 2010, Youssef, though counsel, filed an amended administrative complaint
On May 19, 2010, the EEO Office informed Youssef's counsel that it would commence an investigation and defined the scope of that investigation in the following manner:
Pl.'s Resp. Stmt., Ex. 1 (May 19, 2010 Ltr.) at BY 00038.
It is not clear whether the FBI ever conducted an investigation into Youssef's administrative complaint, let alone what the scope of that investigation might have been. It is clear, however, that the FBI never issued a final decision resolving Youssef's complaint. Def.'s Stmt. ¶ 11; Pl.'s Resp. Stmt. ¶ 11. The FBI's failure to issue a final decision was not for a lack of time; almost a year and a half elapsed between the filing of Youssef's administrative complaint and the commencement of this action.
Although styled in the alternative as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), both parties effectively treat the motion as one for summary judgment under Federal Rule of Civil Procedure 56 and submit statements in accordance with Local Civil Rule 7(h). Youssef, for his part, does not suggest that he "cannot present facts essential to justify [his] opposition." Fed.R.Civ.P. 56(d). In fact, he insists that the motion should be treated as one for summary judgment. See Pl.'s Opp'n at 8. Even though at least some of the materials relied upon by the parties could be considered under Rule 12(c), the Court shall, out of an abundance of caution, exercise its discretion to treat the motion solely as one for summary judgment. See Fed.R.Civ.P. 12(d).
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and [that he] ... is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact. Id. Accordingly, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district court's task is to determine "whether the evidence presents a sufficient disagreement to require submission to [the trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In this regard, the non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); "[i]f the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
Before commencing suit under Title VII, federal employees must fully exhaust their administrative remedies, and they must do so in a timely manner. See 42 U.S.C. § 2000e-16(c); Harris v. Gonzales, 488 F.3d 442, 443 (D.C.Cir.2007). Under the broad authority conferred upon it by Congress, the Equal Employment Opportunity Commission "has established detailed procedures for the administrative resolution of discrimination complaints" raised by federal employees. Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir. 1997). Two of those procedures are of particular relevance to this action.
First, an "aggrieved" federal employee "must initiate contact with a[n EEO] 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)(1). The limitations period begins to run when the employee "knew, or should have known, about the alleged discriminatory action." Stewart v. Ashcroft, 352 F.3d 422, 425 (D.C.Cir. 2003). Because "[t]he purpose of EEO counseling is ... to enable the agency and its employee to try to informally resolve the matter before an administrative charge is filed," the employee must provide "sufficient information to enable the agency to investigate the claim." Artis v. Bernanke, 630 F.3d 1031, 1034 (D.C.Cir.2011) (quotation marks omitted). That is, "[c]laims must be brought to the EEO Counselor in a manner that lends itself to potential resolution." Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C.Cir.1998).
These administrative time limits are not jurisdictional but rather are akin to statutes of limitations. Bowden, 106 F.3d at 437. Ordinarily, "the plaintiff who fails to comply, to the letter, with administrative deadlines ... will be denied a judicial audience." Brown v. Marsh, 777 F.2d 8, 13 (D.C.Cir.1985) (quotation marks omitted). The district court may not consider a claim that has not been properly exhausted absent a basis for applying equitable tolling, estoppel, or waiver. See Steele v. Schafer, 535 F.3d 689, 693 (D.C.Cir. 2008).
Youssef seeks to pursue two Title VII claims in this action — one for discrimination and the second for retaliation — each challenging his non-selection for the Assistant Section Chief position in the Communications Exploitation Section. See Compl. ¶¶ 65-72. The Attorney General now contends that Youssef cannot pursue his claims on the basis that he failed to exhaust his administrative remedies. The Court disagrees. The Court addresses the Attorney General's two overarching arguments in turn.
The Attorney General's first argument, distilled to its essence, is that Youssef cannot pursue either of his claims because his original administrative complaint made no explicit mention of his non-selection for the Assistant Section Chief position. See Def.'s Mem. at 7-12. But before the Court reaches this argument, it pauses to emphasize what is not in dispute: Youssef initiated informal EEO counseling within the forty-five-day window and the counseling that ensued clearly addressed his non-selection for the Assistant Section Chief position. Def.'s Stmt. ¶¶ 2-3; Pl.'s Resp. Stmt. ¶¶ 2-3. Thus, the only question at this point is whether Youssef has satisfied the second requirement of administrative exhaustion — i.e., the filing of a sufficiently detailed administrative complaint within fifteen days of the conclusion of informal counseling. See 29 C.F.R. § 1614.106(a)(b).
In this regard, the Attorney General readily concedes that Youssef filed an administrative complaint within the fifteen-day window, but he maintains that the
But that was not the end of the matter. Presented with Youssef's sweeping and nonspecific description of his hostile work environment claim, the FBI's EEO Office, quite sensibly, sought clarification from Youssef about the scope of his claim. Specifically, the EEO Office afforded Youssef the opportunity to "explain each incident and give the specific date(s) of all alleged incidents" comprising his hostile work environment claim. Pl.'s Resp. Stmt., Ex. 1 (Mar. 23, 2010 E-mail) at BY 00029 (emphasis omitted). When the EEO Office asked for this additional information, it invoked a regulation requiring a complainant to respond within fifteen days or risk dismissal of his entire complaint. See id. (citing 29 C.F.R. § 1614.107(a)(7)
When a district court is asked to evaluate whether an employee has filed a sufficiently detailed administrative complaint, the question is not whether the administrative complaint sets forth the identical legal claims or precise allegations that the employee intends to pursue before the district court. Rather, the question is whether the legal claims before the district court are "like or reasonably related" to the allegations of the administrative complaint. Park, 71 F.3d at 907 (quotation marks omitted). That means that, "[a]t a minimum, the Title VII claims must arise from the administrative investigation that can reasonably be expected to follow the [administrative complaint] of discrimination." Id. (quotation marks omitted). Youssef has met this minimum threshold. Although Youssef's initial description of
Indeed, the only evidence before the Court that speaks directly to the scope of the actual investigation that the EEO Office intended to conduct supports this inference. See Pl.'s Resp. Stmt., Ex. 1 (May 19, 2010 Ltr.) at BY 00038 ("[T]he following allegations will be accepted for investigation: ... on November 24, 2009, complainant received notification that he was not selected for an Assistant Section Chief position in the Communications Exploitation Section of the FBI's Counterterrorism Division[.]"). The Attorney General observes, accurately, that agencies do not waive a defense based on administrative exhaustion merely by accepting an administrative complaint for investigation. See Def.'s Mem. at 13; Def.'s Reply Mem. at 4-5. But preserving a defense is not the same as proving it. The fact that the FBI's EEO Office in fact intended to conduct an investigation covering Youssef's non-selection claim is some evidence that Youssef's administrative complaint was sufficiently specific to reasonably lead to an investigation addressing that claim.
Ultimately, "[t]he exhaustion requirement is a practical and pragmatic one," Wilson v. Peña, 79 F.3d 154, 165 (D.C.Cir.1996) (quotation marks omitted), and "should not be construed to place a heavy technical burden" on plaintiffs, Park, 71 F.3d at 907 (quotation marks omitted). The back-and-forth that occurred between Youssef and the FBI's EEO Office concerning the scope of his hostile work environment allegations, a process that was initiated and encouraged by the FBI's EEO Office, is precisely the sort of informal dialogue between agencies and employees that courts should encourage. See Wade v. Sec'y of Army, 796 F.2d 1369, 1377 (11th Cir.1986) ("[T]he purpose of exhaustion is to give the agency the information it needs to investigate and resolve the dispute between the employee and the employer. Good faith effort by the employee to cooperate with the agency and [the] EEOC and to provide all relevant, available information is all that exhaustion requires."). The Court heartily commends the FBI for engaging in this informal process, but the FBI cannot now credibly claim that Youssef failed to exhaust his administrative remedies when it affirmatively sought out, and obtained, all the information that it needed to investigate and conciliate Youssef's non-selection allegations long before it commenced its investigation.
In reaching this conclusion, the Court does not excuse the imprecision of Youssef's administrative complaint. But because the FBI's EEO Office affirmatively sought and obtained timely clarification about the nature of Youssef's complaint,
The Attorney General's second, narrower argument is that Youssef cannot pursue his national-origin discrimination claim because, although it is uncontested that he completed informal counseling concerning his non-selection for the Assistant Section Chief position, his allegations at that point focused on retaliation and not national-origin discrimination. See Def.'s Mem. at 7-12. In this regard, it is true that when Youssef met with an EEO counselor, his allegations appear to have been confined to his belief that his non-selection was based on his prior EEO activity. See Def.'s Stmt., Ex. 2 (Report of Counseling) at 4, 6. It is also true that retaliation is "ideologically distinct" from national-origin discrimination. Casole v. Johanns, 577 F.Supp.2d 138, 142 (D.D.C. 2008). Seizing on these twin observations, the Attorney General cites to two district court cases faulting employees for conflating ideologically distinct categories of discrimination. See Def.'s Mem. at 13; Def.'s Reply at 8. However, the Attorney General fails to recognize that neither of the authorities he relies upon faults an employee for failing to differentiate between categories of discrimination during informal counseling. Rather, both cases stand for the principle that employees must differentiate between ideologically distinct categories of discrimination in their administrative complaint. See Bell v. Donley, 724 F.Supp.2d 1, 9 (D.D.C.2010); Oliver v. Napolitano, 729 F.Supp.2d 291, 298-99 (D.D.C.2010), aff'd, No. 11-5163, 2011 WL 6759576 (D.C.Cir. Dec. 8, 2011). Youssef did not run afoul of this principle in this case because his administrative complaint clearly identified both national-origin discrimination and retaliation as theories for recovery. See Def.'s Stmt., Ex. 4 (Compl. of Discrimination) at 1.
Meanwhile, the Attorney General has failed to point this Court to any authority suggesting that the same level of exactitude is required at the informal counseling stage. In fact, all that is required at the informal counseling stage is that an employee identify his concerns with enough specificity "to enable the agency ... to try to informally resolve the matter before an administrative charge is filed." Artis v. Bernanke, 630 F.3d at 1034 (quotation marks omitted). In other words, an employee must raise his concerns "in a manner that lends itself to potential resolution." Artis v. Greenspan, 158 F.3d at 1306. Youssef satisfied this lenient standard. Over multiple counseling sessions, the EEO counselor was apprised of the same allegations that Youssef intends to pursue in this case. See Def.'s Stmt., Ex. 2 (Report of Counseling) at 4-8. The EEO counselor met with one of the members of the board that was responsible for passing over Youssef for the Assistant Section Chief position, and the counselor had the opportunity to, and in fact did, inquire about the reasons for Youssef's non-selection. See id. Youssef's participation in informal EEO counseling was sufficient to lend his dispute to potential resolution.
The remaining arguments tendered by the parties are either without merit or
29 C.F.R. § 1614.107(a)(7). Courts in this Circuit routinely uphold dismissals of administrative complaints based upon a complainant's failure to cooperate with reasonable requests for additional information. See, e.g., Koch v. Schapiro, 777 F.Supp.2d 86, 89-92 (D.D.C.2011).
