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Charles v. Hargan

United States District Court, D. Maryland

December 19, 2017

ERIC D. HARGAN, Defendant.



         Plaintiff is a former employee of the National Human Genome Research Institute (“NHGRI”), a research institute within the National Institutes of Health, which is a division within the Department of Health and Human Services (the “Agency”). She brought this lawsuit in the Eastern District of Pennsylvania on November 21, 2016 alleging that her former employer discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (See Compl., ECF No. 4.)[1] Plaintiff originally named her individual supervisors as Defendants and, pursuant to 42 U.S.C. § 2000e-16(c), Plaintiff named the head of the Agency, then-Secretary of Health and Human Services Sylvia Burwell, as a Defendant. The Court has since terminated the individual supervisors as parties (ECF No. 21), and substituted Acting Secretary Eric D. Hargan as the named Defendant (ECF No. 29). Before the Court is Defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), or 56. (ECF No. 22.) After Plaintiff failed to respond properly, the Court set a deadline of December 4, 2017 for Plaintiff to file a response. (See ECF No. 30.) Plaintiff did not respond by that date, but did file a lengthy and untimely response on December 18 (ECF No. 31).[2]Defendant's motion is ripe for review. There is no need for a hearing to resolve the matter. See Local Rule 105.6 (D. Md. 2016). Plaintiff did not properly exhaust her administrative remedies for the majority of her claims and this Court therefore lacks subject matter jurisdiction over those claims. However, a specific claim made in her complaint is possibly still under Agency investigation. Accordingly, Defendant's motion, construed as a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), will be granted in part and denied in part, and the case will be stayed pending administrative resolution.

         I. Facts[3]

         Plaintiff is a fifty-four year old African-American woman. (Compl. at 8.[4]) She worked for NHGRI as a research fellow from 2009 to 2016, with a brief interruption in 2014. (See id.; Aff. of Bashira Charles 2, Mot. Dismiss Ex. 1, ECF No. 22-5 at 3.) During that time, Plaintiff claims she was subjected to a variety of discriminatory and retaliatory actions by her supervisors. For reasons explained below, the substance of her claims is not legally relevant to the disposition of Defendant's motion, and therefore will only be discussed briefly. Plaintiff claimed, inter alia, that her supervisors promised her positions only to fill those positions with younger, foreign men, that her supervisors undermined her research and took credit for her work, that on occasion her supervisors made racially insensitive remarks, and that she was exposed to chemicals in retaliation for complaining of this discrimination. (See Compl. at 8-14.)

         What is legally relevant to Defendant's motion is the timing of when Plaintiff made her complaints, both within the Agency and in Federal Court. This is because a federal district court can only have subject matter jurisdiction over a federal employee's Title VII or ADEA claims if those claims were first raised by the employee within her agency, and within a certain timeframe. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Plaintiff raised two formal complaints within her agency, and the Court will outline the relevant dates for those complaints.

         Plaintiff filed the first Complaint within the Agency on February 2, 2015, and it was given the Agency case number of HHS-NIH-NHGRI-008-15 (“Complaint 008-15”). (See Final Agency Decision, HHS-NIH-NHGRI-008-15 at 3, Mot. Dismiss Ex. 15, ECF No. 22-19 at 4.) This Complaint forms the basis for the vast majority of the claims Plaintiff makes in her complaint in this Court. (Compare Compl. at 8-14 with Final Agency Decision, HHS-NIH-NHGRI-008-15 at 1-2.) On April 16, 2015 the Agency issued a Final Agency Decision (“FAD”) dismissing all of the claims in this Complaint. As outlined in Equal Employment Opportunity Commission (“EEOC”) regulations, and communicated to Plaintiff in the FAD that was sent to her, Plaintiff had thirty days to appeal this decision to the EEOC Office of Federal Operations (“OFO”). See 29 C.F.R. § 1614.402. (Final Agency Decision, HHS-NIH-NHGRI-008-15 at 4, ECF No. 22-19 at 5.) But instead of appealing within thirty days, Plaintiff appealed to the OFO on January 20, 2016, roughly nine months after receiving the FAD. (See EEOC OFO Dismissal 1, Mot. Dismiss Ex. 16, ECF No. 22-20 at 2.) On August 19, 2016, the OFO dismissed this appeal as untimely. (Id.)

         Plaintiff filed the second complaint within the Agency on March 2, 2016, and it was given the Agency case number of HHS-NIH-NHGRI-043-16 (“Complaint 043-16”). (See Letter of Acceptance 1, Mot. Dismiss Ex. 18, ECF No. 20-22 at 2.) The Agency accepted some of the claims contained in this Complaint for investigation on October 19, 2016. (Id.) The only claim accepted by the Agency that appears in Plaintiff's complaint in this action is that she was subjected to chemical exposure, presumably in retaliation for complaining of discrimination. (Compare Letter of Acceptance at 1 with Compl. at 13.)

         Plaintiff filed the instant action in Federal District Court in the Eastern District of Pennsylvania on November 21, 2016, before the Agency issued a FAD on Complaint 043-16. She was homeless and unemployed when she filed the case and requested appointment of an attorney on November 30, 2016. (See ECF No. 2.) The case was transferred to this Court on January 4, 2017. (See ECF No. 5.) Before the Court is Plaintiff's request for appointment of an attorney, and Defendant's motion to dismiss, which will be construed as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

         II. Standards for Request for Appointment of Counsel and Motion to Dismiss

         “Title VII contains a provision which allows a district court, in certain cases, to appoint counsel.” Young v. K-Mart Corp., 911 F.Supp. 210, 211 (E.D. Va. 1996) (citing 42 U.S.C. § 2000e-5(f)(1)). “The decision of whether to appoint counsel is within the discretion of the trial judge.” Id. (citing Poindexter v. Federal Bureau of Investigation, 737 F.2d 1173, 1179 (D.C. Cir. 1984)); see also Scott v. Health Net Fed. Servs., LLC, 463 F. App'x 206, 209 (4th Cir. 2012) (unpublished).

         Proper exhaustion of administrative remedies is a prerequisite for federal subject matter jurisdiction, see Jones, 551 F.3d at 300, and the burden of proving subject matter jurisdiction is on the plaintiff, Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). “The court must presume that all factual allegations in the complaint are true and make all reasonable inferences in the plaintiff's favor.” Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003). Furthermore, the Court will construe all pleadings “so as to do justice, ” Fed.R.Civ.P. 8(e), and “as the case law makes very clear, the district court is obligated to make a determined effort to understand what the pleader is attempting to set forth.” 5 Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1286 (3d ed.). Pleadings written by a pro se litigant are especially liberally construed, but “the court cannot ignore a clear failure to allege facts that support a viable claim.” Osei v. University of Maryland University College, 202 F.Supp.3d 471, 480-81 (D. Md. 2016) (citing Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)).

         III. Analysis

         a. Request for Appointment of an Attorney

         As a preliminary matter, Plaintiff made a request for appointment of an attorney, pursuant to Title VII, 42 U.S.C. § 2000e-5(f)(1), in the District Court in Pennsylvania shortly after initiating this action. (See ECF No. 2.) Title VII does provide litigants a “right to request an attorney, but it does not create a statutory right to have counsel actually appointed.” Spell v. Maryland Human Relations Comm'n, Civ. No. 11-0803, 2011 WL 6000862, at *6 (D. Md. Nov. 28, 2011) (internal quotation marks omitted). This Court has discretion to determine whether to appoint counsel for Plaintiff, id. (citing Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984)), and considers a number of factors, including: the complexity of the issues, see Id. (denying appointment where the legal issues did “not appear unduly complex”), the plaintiff's ability to pay, see Young, 911 F.Supp. at 211, and the merits of plaintiff's claim, see Garrison v. ...

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