United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE.
a federal-sector employment discrimination case brought by
Plaintiff William Wojtkowski against the U.S. Department of
Commerce (“the Agency”) for alleged violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (“Title VII”) and the Age
Discrimination in Employment Act of 1967, as amended, 29
U.S.C. §§ 621, et seq.
(“ADEA”). Pending before the Court is
Defendant's Motion to Dismiss or, alternatively, Motion
for Summary Judgment. ECF No. 9. No. hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Defendant's Motion to Dismiss, construed as a
Motion for Summary Judgment, is denied.
March 27, 2015, Wojtkowski initiated contact with an Equal
Employment Opportunity (EEO) Counselor to file an informal
pre-complaint. ECF No. 9-2 at 1. Among other claims,
Wojtkowski alleged that within the previous forty-five days,
the Agency discriminated against him based on his age and sex
by denying or ignoring his requests to re-classify his job at
a higher pay-scale despite routinely performing duties well
above his pay rate and job description. Id. at 6.
Wojtkowski also notified the EEO Counselor that he believed
he had been retaliated against for taking steps to report the
alleged discrimination. Id. Through the EEO
counseling process, Wojtkowski received a “Notice of
Rights and Responsibilities, ” which listed his
“right to an immediate final decision after an
investigation by the agency in accordance with 29 C.F.R.
§ 1614.108(f), ” and his “right to go to a
U.S. District Court 180 calendar days after filing a formal
complaint if no final action has been taken on the complaint,
or 180 days after filing an appeal if no decision has been
issued on the appeal.” ECF No. 9-2 at 3.
filed a formal complaint reiterating what he had told the EEO
counselor on May 26, 2015. ECF No. 9-3. The following year,
on February 2, 2016, after completing an investigation in
which Wojtkowski cooperated, ECF No. 10-2, the Department of
Commerce issued a Final Agency Decision (“FAD”).
ECF No. 9-4. The Agency found no evidence of discrimination.
Id. The FAD advised Wojtkowski that he could appeal
the Agency's decision with the EEOC or file a civil
action in a federal district court. ECF No. 9-4 at 35-36.
filed an appeal with the EEOC on March 7, 2016, thirty-three
calendar days after his attorney received the FAD at her
address of record. ECF No. 9-5, 9-6. On January 25, 2017, 324
days after Wojtkowski filed the appeal, the EEOC dismissed
the appeal for lack of timeliness. ECF No. 9-7 at 2. The
EEOC's dismissal explained that Wojtkowski could request
the Commission reconsider “within thirty (30) calendar
days of receipt of [its] decision.” Id.
Alternatively, the denial explained that Wojtkowski could
“file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the
date” he received the EEOC's decision. Id.
moved for the EEOC to reconsider. ECF No. 9-8. The EEOC
ultimately denied reconsideration, issuing a final decision
that Plaintiff received on May 23, 2017. ECF No. 9-9 at 1-2,
4. In that denial, the EEOC noted: “You have the right
to file a civil action in an appropriate United States
District Court within ninety (90) calendar
days from the date that you receive this
decision.” Id. at 2 (emphasis in original).
Wojtkowski filed this action on August 21, 2017, within the
ninety day timeframe. ECF No. 1. The Agency moved to dismiss
or for summary judgment, arguing that Wojtkowski failed to
exhaust administrative remedies and, with respect to his ADEA
claim, failed to notify the Agency of his intent to sue. ECF
No. 9. Plaintiff filed an Opposition, ECF No. 10, and the
Agency replied, ECF No. 12.
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(b)(6), dismissal is
appropriate where a complaint does not contain
“sufficient factual matter, accepted as true, ‘to
state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In an employment discrimination case, a
plaintiff cannot state a claim for relief under the ADEA or
Title VII without first exhausting his administrative
remedies. Blount v. Shalala, 32 F.Supp.2d 339, 341
(D. Md.), aff'd, 199 F.3d 1326 (4th Cir. 1999).
Court considers matter outside the pleadings to determine
whether an employee-plaintiff exhausted administrative
remedies, the Court must treat a motion to dismiss as one for
summary judgment. Jakubiak v. Perry, 101 F.3d 23, 24
& n. 1 (4th Cir. 1996). When the Court treats a motion to
dismiss as a motion for summary judgment, “[a]ll
parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.”
Id. It is obvious that when the moving party styles
its motion as a “Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment, ” as is the
case here, and the nonmoving party attaches exhibits to its
opposition, the nonmoving party is aware that materials
outside the pleadings are before the court, and the Court can
treat the motion as one for summary judgment. See
Laughlin v. Metropolitan Wash. Airports Auth., 149 F.2d
253, 260-61 (4th Cir.1998). Further, a court is not
prohibited from granting a motion for summary judgment before
the commencement of discovery. See Fed. R. Civ. P.
56(a) (stating that the court “shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact” without distinguishing pre- or
post-discovery). However, summary judgment should not be
granted if the nonmoving party has not had the opportunity to
discover information that is essential to his opposition to
the motion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 n. 5 (1987). If the nonmoving party feels that
the motion is premature, that party can invoke Federal Rule
of Civil Procedure 56(d). See Celotex Corp. v.
Catrett, 477 U.S. 317, 326 (1986). Under Rule 56(d), a
court may deny a motion for summary judgment if the nonmovant
shows through an affidavit that, for specified reasons, he
cannot properly present facts, currently unavailable to him,
that are essential to justify an opposition. Here, the
nonmovant has not filed an affidavit under 56(d).
judgment is proper only when there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law. Meson v. GATX Tech. Servs. Corp., 507
F.3d 803, 806 (4th Cir. 2007); see also Fed. R. Civ.
P. 56(a). The moving party bears the burden of demonstrating
that no genuine dispute exists with regard to material facts.
Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282,
1286 (4th Cir.1987).
filing a Title VII or ADEA lawsuit, a federal employee must
exhaust his administrative remedies. Blount, 32
F.Supp.2d at 341. To do so, the employee must first consult
with an EEO counselor to file a pre-complaint within
forty-five days of the alleged discrimination. See
20 C.F.R. § 16-14.105(a)(1). If counseling does not
resolve the issue, the employee must then file a formal
complaint against the employer within fifteen days of
receiving notice that the counselor failed to resolve the
claim. Id. §§ 16-14.105(d), 1614.106(b).
An employee next has a right to “an immediate final
decision” after an investigation by the agency.
C.F.R. § 1614.108(f). Once an employee receives a Final
Agency Decision (“FAD”), the individual is
authorized to file a civil action in federal court, 29 C.F.R.