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Wojtkowski v. Ross

United States District Court, D. Maryland, Southern Division

September 14, 2018




         This is 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”).[1] 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.

         I. BACKGROUND[2]

         On 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.[3] 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.

         Wojtkowski 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.

         Wojtkowski 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.

         Wojtkowski 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.


         Under 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).

         If the 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).

         Summary 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).


         Before 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.

         29 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. § ...

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