LAWSON v. LYNCH et al

Filing 20

MEMORANDUM OPINION granting in part and denying in part Defendants' 9 Motion to Dismiss. See attached document for details. Signed by Judge Ketanji Brown Jackson on September 22, 2017. (lckbj2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SHEILA J. LAWSON,
Plaintiff,
v.
JEFFERSON B. SESSIONS, U.S.
Attorney General, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 15-cv-1723 (KBJ)

MEMORANDUM OPINION
During the summer of 2006, pro se plaintiff Sheila Lawson resigned from the
Federal Bureau of Investigation (“FBI”) following a nearly 11-year tenure as a Special
Agent. (First Am. Compl. (“Compl.”), ECF No. 5, ¶¶ 10, 13.) Shortly after her
resignation, Lawson had a change of heart, and between 2007 and 2010, she repeatedly
asked to be reinstated to her former position. (See id. ¶¶ 18, 24, 27, 30.) The FBI
denied each of Lawson’s four requests for reinstatement. (See id. ¶¶ 20, 25, 28, 32.) In
the instant lawsuit, Lawson alleges that the FBI’s refusal to reinstate her as a Special
Agent constitutes discrimination on the basis of her age, sex, and race, and was also
retaliation for an Equal Employment Opportunity (“EEO”) complaint that Lawson had
filed in 2006. (See id. ¶ 1.) The instant complaint separately alleges that the FBI
retaliated against Lawson by improperly processing another one of her EEO complaints;
specifically, Lawson contends that an FBI employee interfered with the processing of
an EEO complaint she filed in 2010 in order to retaliate against her for filing the 2006
EEO complaint. (See id. ¶¶ 106–10, 147–51.)

Notably, this legal action consists of seven separate discrimination or retaliation
counts, and each of these counts has been brought under either Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17 (see Counts V–VII),
or the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621−34 (see
Counts I–IV). Furthermore, each count relates either to the FBI’s refusal to reinstate
Lawson as an SA (Counts I, II, III, V, and VI (referred to herein, collectively, as the
“failure-to-hire claims”)), or the alleged improper processing of Lawson’s 2010
administrative complaint (Counts IV and VII (collectively, the “retaliatory interference
claims”)).
Before this Court at present is the motion to dismiss Lawson’s complaint that the
FBI, the Department of Justice (“DOJ”), Attorney General Jefferson Sessions, and FBI
Director Christopher Wray (collectively, “Defendants”) have filed. (See generally
Defs.’ Mot. to Dismiss (“Defs.’ Mot”), ECF No. 9.) 1 Defendants argue that several of
Lawson’s failure-to-hire claims are unexhausted (see id. at 13–15), that any exhausted
claims were not timely presented to this Court (see id. at 12–13), and that all of the
claims in the complaint fail to state valid grounds for relief (see id. at 15–21). 2

1

Lawson’s complaint actually names former Attorney General Loretta Lynch and former FBI Director
James Comey as the officer defendants (see Compl. ¶ 1), but pursuant to Federal Rule of Civil
Procedure 25(d), their respective successors in office—Attorney General Jefferson Sessions and FBI
Director Christopher Wray—have since been automatically substituted as defendants. Furthermore,
because “the only proper defendant in suits brought under [Title VII and the ADEA] is the head of the
department or agency being sued[,]” Wilson v. Dep’t of Transp., 759 F. Supp. 2d 55, 67 (D.D.C. 2011);
see also 42 U.S.C. § 2000e-16(c), it is hereby ORDERED that all of the defendants in this action other
than Attorney General Sessions are DISMISSED. The proper defendant in a Title VII action filed
against the FBI is the head of DOJ. See Mulhall v. Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002) (“[I]n
the present case [the plaintiff] alleges Title VII retaliation by the FBI; the FBI is a subunit of the
Justice Department. Therefore, the proper defendant is the Attorney General, the head of the Justice
Department.”). However, for the sake of convenience, this Court will persist in using the plural term
“Defendants” when referring to the movant in this Memorandum Opinion.
2

Page-number citations to documents the parties have filed refer to the page numbers that the Court’s
electronic filing system automatically assigns.

2

Defendants’ arguments for dismissal generally treat the discrimination and retaliation
claims that Lawson brings under Title VII as largely interchangeable with those that she
brings under the ADEA; however, as explained below, there are critical differences
between the procedures that a plaintiff must follow with respect to exhaustion and
timeliness under those two statutes. Consequently, although the Court largely agrees
with Defendants’ exhaustion and timeliness arguments as they apply to Lawson’s Title
VII failure-to-hire claims (with an exception discussed below), the Court concludes that
Defendants have not demonstrated that Lawson’s ADEA failure-to-hire claims are
unexhausted or untimely. The Court also concludes that the ADEA failure-to-hire
counts state valid claims for discrimination and retaliation, because the complaint
plausibly alleges both (1) that age was a factor in the FBI’s refusal to reinstate Lawson,
and (2) that the FBI’s refusal was causally related to an EEO complaint that Lawson
previously filed in 2006. Finally, the Court concludes that Lawson’s retaliatory
interference claims state valid grounds for relief, because Lawson has plausibly alleged
that interference in the processing of her EEO complaint was a materially adverse
action of the sort that can substantiate retaliation claims under both Title VII and the
ADEA.
Accordingly, Defendants’ motion to dismiss will be GRANTED IN PART AND
DENIED IN PART. Lawson’s Title VII failure-to-hire claims (Counts V and VI) will
be largely dismissed for failure to exhaust, while the corresponding ADEA failure-tohire claims (Counts II and III), as well as her Title VII and ADEA retaliatory
interference claims (Counts IV and VII), may proceed. With respect to the failure-tohire allegations that Lawson makes in Count I, the Court will permit Lawson to amend

3

her complaint to clarify the claim, and Lawson can also amend Counts V and VI to
address deficiencies in the surviving portions of those claims, as outlined below. A
separate Order consistent with this Memorandum Opinion will follow.
I.

BACKGROUND
A.

Facts Pertaining To Lawson’s Failure-To-Hire Claims 3

Sheila Lawson is an African-American woman who began her employment as a
Special Agent (“SA”) with the FBI on October 15, 1995. (See Compl. ¶¶ 9–10.) At
some unspecified point in 2006, Lawson “initiated the EEOC discrimination complaint
process” (id. ¶ 12), and filed a formal complaint of discrimination (see id. ¶ 90). The
exact substance of Lawson’s 2006 grievance is not apparent from her complaint in the
instant case, although Lawson does allege that the EEO claims were brought “against
[Robert Enriquez, her former supervisor] and other FBI employees[.]” (Id. ¶ 107.) On
July 7, 2006, after serving nearly 11 years as an SA, Lawson resigned from her position
(see id. ¶ 13), and the following year, she withdrew the 2006 EEO complaint (see id.
¶ 14).
Following Lawson’s resignation, the FBI Human Resources office sent Lawson
an electronic communication that outlined the agency’s reinstatement policy for former
SAs. (See id. ¶ 15.) This message “stated that if an individual took a refund of the
retirement contributions made to the FERS pension account, that individual is
prohibited by federal law from repaying that amount to get credit for their prior service
and would, therefore, be ineligible for reinstatement if they are already older than age

3

The following facts are drawn from Lawson’s first amended complaint. Although the complaint is at
times difficult to follow, the Court believes that the following recitation accurately represents the
substance of Lawson’s allegations and claims.

4

37.” (Id. ¶ 16 (internal quotation marks omitted).) 4 Lawson received this message on
March 20, 2007. (See id. ¶¶ 15−16.) Ten days later—on March 30, 2007—Lawson
requested reinstatement as an FBI SA. (See July 7, 2015 EEOC Decision (“Final EEOC
Decision”), Ex. A to Compl., ECF No. 5-1, at 3.) And five days after the reinstatement
request—on April 5, 2007—Lawson “took a refund of the retirement contributions in
her FERS account.” (Compl. ¶ 17.)
According to Lawson, on at least four different occasions between May 31, 2007,
and March 26, 2010, the FBI denied her formal requests for reinstatement, and Lawson
alleges that the FBI refused to rehire her because of her age, sex, and race, and also in
retaliation for her filing of the 2006 EEO complaint. The first denial occurred on May
31, 2007, when the Chief of Human Resources allegedly “denied [Lawson] the FBI SA
position because she was 41 years old” (id. ¶ 20), and therefore could not accumulate
20 years of service before the FBI’s mandatory-retirement age of 57 (see id. ¶ 22; see
also supra note 4). Undaunted, Lawson again requested reinstatement, and enclosed
with her reinstatement request was a letter that she addressed to the Director of the FBI
and that asked for an age waiver. (See id. ¶ 24.) 5 In correspondence dated September

4
The reinstatement policy provides that all reinstatement candidates must be able to complete 20 years
of service by the mandatory-retirement age, which at that time was 57. (See FBI Special Agent
Reinstatement Policy, Ex. A to Defs.’ Mot, ECF No. 9-1, at 2; Letter of May 31, 2007, Ex. C to Defs.’
Mot., ECF No. 9-3, at 1.) When making this years-of-service calculation, the agency typically credits a
reinstatement applicant with her years of prior service, unless that “individual took a refund of the
retirement contributions [she] made to FERS,” in which case the reinstatement applicant is prohibited
“from repaying that amount to get credit for [her] prior service[.]” (FBI Special Agent Reinstatement
Policy at 2.) Accordingly, “if an individual took a refund of [her] retirement contributions[,]” she
could not receive credit for prior years of service and would thus “be ineligible for reinstatement if [she
is] already older than age 37.” (Id.) The Court includes this information, which is contained in
exhibits to Defendants’ motion, to provide additional context for its explanation of the facts at issue,
and has not otherwise relied upon Defendants’ exhibits in resolving the instant motion to dismiss.
5

Pursuant to “Human Resources Order−DOJ 1200.1[,]” age waivers are available to individuals who
otherwise exceed the maximum permissible age for reinstatement in cases involving “especially
qualified individuals; shortage of highly qualified individuals for specific law enforcement positions[;]

5

2, 2008, the FBI again denied Lawson’s request, explaining that “the FBI Director
could give ‘no further consideration’ because the FBI Director could only grant age
waivers up to age 60” (id. ¶ 25), and as a 41-year-old requester, Lawson could not
accumulate 20 years of service before that cutoff.
Lawson subsequently submitted two more reconsideration requests, both of
which the agency swiftly denied in a letter dated January 7, 2009. (See id. ¶¶ 27−28.)
In this denial letter—the agency’s third in less than two years—the agency purportedly
advised Lawson “that she had ‘reached the age’ where she could no longer be reinstated
in the FBI SA position” (id. ¶ 28), and further instructed her to direct age waiver
requests to the Attorney General (see id. ¶ 29). Lawson followed this instruction
approximately four months later by sending “a letter to Attorney General Eric H.
Holder, Jr. requesting a decision regarding her application for reinstatement in the FBI
SA position.” (Id. ¶ 30.) This request was subsequently forwarded to the FBI’s Human
Resources office, and in a letter dated March 26, 2010, the agency, for the fourth time,
declined to reinstate Lawson. (See id. ¶¶ 31−32.)
B.

Facts Pertaining To Lawson’s Retaliatory Interference Claims

At some point in 2010, Lawson “contacted an EEO counselor” and “initiated the
informal discrimination complaint counseling phase[.]” (Id. ¶ 106.) On July 10, 2010,
Lawson filed a formal complaint with the EEOC in which she claimed that the FBI had
discriminated against her on the basis of sex and age, and had retaliated against her for

. . . [and] situations where tentative selectees for law enforcement positions have passed the maximum
entry age due to unavoidable or unexpectedly lengthy clearance or processing requirements[.]”
(Compl. ¶ 37 (internal quotation marks omitted) (quoting HR Order−DOJ 100.1, Chap. 1−6, Maximum
Entry Age And Mandatory Retirement of Law Enforcement Officers, found at
https://www.justice.gov/jmd/hr-order-doj12001-part-1-employment-1).)

6

prior protected activity, when it refused to grant her reinstatement requests between
May 23, 2007 and March 26, 2010. (See Final EEOC Decision at 1.) Lawson alleges
that while she was “participat[ing] in the EEOC formal discrimination complaint
process[,]” Robert Enriquez—Lawson’s former FBI Unit Chief, “who knew [Lawson
had] filed a prior discrimination complaint against him in 2006” (Compl. ¶ 48)—got
involved with Lawson’s EEO case and purportedly “interfered” with her administrative
complaint “through improper complaint processing, an incomplete investigation of
Plaintiff’s claims of discrimination, and the omission of any investigation of Plaintiff’s
claims of retaliation.” (Id. ¶ 49; see also id. ¶ 48.) Enriquez’s actions allegedly
prompted Lawson to file “a spin-off EEOC complaint” regarding Enriquez’s conduct
during the administrative proceedings for Lawson’s July 2010 complaint. (Id. ¶ 50.)
The instant complaint provides no additional details regarding the timing, content, or
disposition of Lawson’s “spin-off” administrative complaint.
On July 7, 2015, the EEOC issued its final decision dismissing Lawson’s July
2010 complaint. (See generally Final EEOC Decision.) At the end of its decision
letter, the Commission informed Lawson that she had the right to file a civil action in
federal court “within ninety (90) calendar days from the date that” she received its
decision, and further explained that, “[f]or timeliness purposes, the Commission will
presume that this decision was received within five (5) calendar days after it was
mailed.” (Id. at 6, 8.)
C.

Procedural History

Lawson initiated the instant lawsuit on October 19, 2015—104 days after the
EEOC issued its decision of July 7, 2015. Lawson subsequently filed an amended

7

complaint, which is the current operative complaint in this matter, asserting seven
separate causes of action that, as explained above, arise from two distinct categories of
acts. (See generally Compl.)
The claims in the first category, which this Court calls the “failure-to-hire
claims,” challenge the FBI’s repeated refusal to reinstate Lawson as an SA. Lawson
alleges that the agency’s four denial letters constitute disparate treatment due to age,
race, and sex under the ADEA (Count II) and Title VII (Count V), respectively (see id.
¶¶ 71−85, 116−27), and Lawson also contends that the agency refused to reinstate her
on these occasions in retaliation for her prior EEO activity, in violation of the ADEA
(Count III) and Title VII (Count VI) (see id. ¶¶ 86−99, 128−40). Lawson’s first failureto-hire claim (Count I) is more difficult to characterize. This cause of action—which is
brought under the ADEA and is captioned, “Unlawful Discrimination Because of Age in
FBI Reinstatement Policy”—at times appears to challenge the FBI’s reinstatement
policy as facially discriminatory (see id. ¶ 67 (“The hiring policy . . . unlawfully
excluded Plaintiff because of age.”)), and at other times appears to raise a disparate
treatment claim (see id. ¶ 65 (alleging that the “discriminatory age-based policy was not
applied to every over age 37 reinstatement applicant who depleted the FERS pension
account but was applied to disadvantage Plaintiff because of her age”)).
The second category of claims in Lawson’s complaint, which the Court refers to
as the “retaliatory interference claims,” challenges Enriquez’s purported interference
with, and improper processing of, Lawson’s EEO complaint. (See id. ¶¶ 100–15, 141–
55.) The complaint contends that Enriquez’s conduct amounted to retaliation in
violation of the ADEA (Count IV) and Title VII (Count VII).

8

On June 15, 2016, Defendants filed a motion to dismiss Lawson’s complaint.
(See generally Defs.’ Mot.) Largely without differentiating between Lawson’s various
claims and the asserted legal bases for them, Defendants argue that Lawson’s “case”
should be dismissed as untimely because Lawson filed the complaint more than 90 days
after receiving her EEOC right-to-sue letter (see id. at 12−13), and because Lawson
failed to exhaust any claims that are based on acts that occurred prior to November 17,
2009 (see id. at 15). Defendants also contend that none of Lawson’s disparate treatment
or retaliation allegations state a valid claim for discrimination or retaliation in violation
of Title VII or the ADEA. (See id. at 15−21.) For her part, Lawson responds that she
timely filed her complaint within 90 days of receiving the right-to-sue letter (see Pl.’s
Suppl. Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 15-1, at 10−12), and
Lawson also insists that she has exhausted all available administrative remedies (see id.
at 13−14). 6 Lawson further maintains that the complaint adequately alleges
discriminatory treatment and retaliation in violation of the law. (See id. at 14−23.)
Defendants’ motion to dismiss is now ripe for this Court’s review. (See Defs.’
Mot; Pl.’s Opp’n; Defs.’ Reply in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Reply”),
ECF No. 16.)

6

Lawson filed an initial brief in opposition to Defendants’ motion on July 15, 2016 (see Pl.’s Mem. in
Opp’n to Defs.’ Mot. to Dismiss, ECF No. 13), and thereafter sought, and received, leave to file a
supplemental opposition brief (see Pl.’s Mot. for Leave to File Suppl. Mem. in Opp’n to Defs.’ Mot. to
Dismiss, ECF No. 15; Min. Order of Aug. 1, 2016). Because the supplemental memorandum that
Lawson has filed effectively supplants, rather than supplements, her initial opposition brief, this Court
will refer exclusively to the ‘supplemental’ memorandum when recounting Lawson’s arguments.

9

II.

LEGAL STANDARD
A motion to dismiss a complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) challenges the adequacy of the complaint on its face, testing whether the
pleading “state[s] a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6).
Although a complaint does not require detailed factual allegations, it must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[M]ere conclusory
statements” are not enough to make out a cause of action against a defendant, Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); instead, the facts alleged “must be enough to raise a
right to relief above the speculative level,” Twombly, 550 U.S. at 555. “In determining
whether a complaint states a claim, the court may consider the facts alleged in the
complaint, documents attached thereto or incorporated therein, and matters of which it
may take judicial notice.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.
Cir. 2007).
Of course, this Court is mindful that Lawson is proceeding in this matter pro se,
and that the pleadings of pro se parties are to be “liberally construed” and “held to less
stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus,
551 U.S. 89, 94 (2007). “This benefit is not, however, a license to ignore the Federal
Rules of Civil Procedure[,]” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137
(D.D.C. 2009), and “even a pro se plaintiff must meet his burden of stating a claim for
relief[,]” Horsey v. Dep’t of State, 170 F. Supp. 3d 256, 263−64 (D.D.C. 2016).

10

III.

ANALYSIS
As explained above, Lawson’s complaint raises seven causes of action that arise

from two distinct categories of acts. First, Lawson’s failure-to-hire claims challenge
the FBI’s repeated refusals to reinstate her as an SA, on the grounds that these refusals
constitute discrimination and retaliation in violation of Title VII (Counts V, VI) and the
ADEA (Counts I, II, III). By contrast, Lawson’s second group of claims challenges the
agency’s interference with, and improper processing of, her EEO complaint, which,
Lawson contends, amounts to retaliation in violation of Title VII (Count VII) and the
ADEA (Count IV). This parsing of the claims is important because, for the reasons set
forth below, the Court concludes that Lawson’s failure-to-hire claims brought pursuant
to Title VII must be dismissed in part for failure to exhaust, while those brought under
the ADEA either suffice to state a claim or may be amended to clarify Lawson’s theory
of liability. The Court further finds that Lawson’s retaliatory interference claims
survive Defendants’ motion to dismiss.
A.

Lawson’s Title VII Failure-To-Hire Claims Must Be Largely
Dismissed

Although Defendants conflate the failure-to-hire claims that Lawson has brought
under Title VII with the similar claims that she has brought under the ADEA (see Defs.’
Mot. at 12−15), the exhaustion and timeliness “rules relating to Title VII and ADEA
claims . . . are not identical[,]” Achagzai v. Broad. Bd. of Govs., 170 F. Supp. 3d 164,
171 (D.D.C. 2016), and as a result, the two causes of action must be analyzed
separately. So analyzed, it is clear from the face of Lawson’s complaint that she failed
to exhaust three of the four discrete acts that form the basis of her Title VII failure-tohire claims (with respect to the fourth act, this Court will give Lawson permission to

11

amend her complaint to address the deficiencies that Defendants have identified). With
respect to Lawson’s corresponding ADEA claims, the Court concludes that there is no
exhaustion problem and that Lawson has alleged sufficient facts to support the age
discrimination and retaliation claims stemming from the FBI’s refusal to reinstate her.
The Court will also allow Lawson to amend her complaint to clarify the ADEA claim
she intends to raise in Count I.
1.

The Failure-To-Hire Claims That Arise Under Title VII Must Be
Dismissed For Failure To Exhaust Administrative Remedies With
Respect To Three Out Of The Four Denial Letters Upon Which
Those Claims Are Based, But Lawson May Amend Her Complaint
With Respect To The Fourth Letter

Lawson’s Title VII failure-to-hire claims (Counts V and VI) arise out of the
FBI’s refusal on four separate occasions (May 31, 2007; September 2, 2008; January 7,
2009; and March 26, 2010) to reinstate Lawson as an FBI SA. As noted, Lawson
contends that these denials constitute disparate treatment based on her sex and race, and
in addition, that the FBI issued these denials in retaliation for her 2006 EEOC
complaint. It is well established that, if Lawson is correct that the FBI’s denials were
discriminatory, each refusal is treated as a separate discriminatory act for purposes of
Title VII’s exhaustion requirements. See Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113 (2002) (“Each discrete discriminatory act starts a new clock for filing
charges alleging that act.”). For the reasons that follow, this Court finds that, with
respect to the first three denial letters from the FBI, it is clear from the face of
Lawson’s complaint that she did not contact an EEO counselor within 45 days of these
purported violations, and as a result, failed to exhaust her administrative remedies in
regard to those discrimination claims.

12

“Before a federal employee can file suit against a federal agency for violation of
Title VII, the employee must run a gauntlet of agency procedures and deadlines to
administratively exhaust his or her claims.” Crawford v. Duke, 867 F.3d 103, 105 (D.C.
Cir. 2017). First, an employee must contact the agency’s Equal Employment
Opportunity (“EEO”) counselor to initiate informal counseling “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). If the
matter is not resolved informally within 30 days, the employee then has 15 days to file
a formal complaint with the agency. See id. §§ 1614.105(d), 1614.106(a). Once an
employee has filed a formal complaint, the agency must “conduct an impartial and
appropriate investigation of the complaint within 180 days” of that filing, id.
§ 1614.106(e)(2), and the employee may subsequently file suit in federal district court,
but must do so within 90 days of receipt of the agency’s final determination, or if the
agency does not take final action, after 180 days have elapsed since the filing of the
complaint with the agency, see 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(c).
“[T]he administrative time limits . . . erect no jurisdictional bars to bringing
suit[,]” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); instead, these
requirements function like statutes of limitations, and as such, are subject to waiver,
estoppel, and equitable tolling, see Horsey, 170 F. Supp. 3d at 264–65; see also Rann v.
Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (reiterating that “the timeliness and
exhaustion requirements of § 633a(d) are subject to equitable defenses and are in that
sense non-jurisdictional”). However, in order to receive the benefit of equitable tolling,
a tardy plaintiff must show “(1) that [s]he has been pursuing h[er] rights diligently, and

13

(2) that some extraordinary circumstance stood in h[er] way and prevented timely
filing[.]” Horsey, 170 F. Supp. 3d at 267 (internal quotation marks and citation
omitted). The Supreme Court has suggested that equitable tolling might be available
where a claimant “received inadequate notice,” where “a motion for appointment of
counsel is pending[,]” or “where the court has led the plaintiff to believe that she had
done everything required of her[.]” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147,
151 (1984) (per curiam).
In the instant case, it is evident on the face of Lawson’s complaint that she did
not exhaust administrative remedies with respect to the first three denial letters and that
no grounds for equitable tolling exist. Lawson’s complaint alleges that the agency
denied her requests for reinstatement by issuing letters dated May 31, 2007; September
2, 2008; January 7, 2009; and March 26, 2010 (see Compl. ¶¶ 20, 25, 28, 32), and that
she initiated contact with an EEO counselor at some unspecified time in 2010 (see id.
¶ 106). While it is possible that Lawson’s 2010 EEO contact occurred within 45 days
of the March 26, 2010 letter, the same cannot be said with respect to the first three
denial letters. That is, even assuming that Lawson initiated contact with the EEO
counselor at the earliest possible time in 2010 with respect to the 2007, 2008, and 2009
denial letters (i.e., on January 1, 2010), this contact occurred 946 days after the May 31,
2007 letter, 486 days after the September 2, 2008 letter, and 359 days after the January
7, 2009 letter, respectively—far beyond the applicable 45-day reporting period.
Therefore, it is clear on the face of Lawson’s complaint that she did not timely contact
an EEO counselor with respect to the first three denial letters.

14

Nor has Lawson established that this is one of the “extraordinary and carefully
circumscribed instances” in which equitable tolling is warranted. Washington v.
WMATA, 160 F.3d 750, 753 (D.C. Cir. 1998) (internal quotation marks and citation
omitted). Lawson suggests that tolling is justified simply and solely because she “could
not have known about the discrimination or retaliation upon receipt of a letter at
issue[.]” (Pl.’s Opp’n at 13−14.) Critically, however, Lawson fails to articulate
precisely why she could not possibly have known that the denial letters were
discriminatory and retaliatory when she received them, and her contention in this regard
is particularly odd given that her current discrimination and retaliation claims appear to
rest solely upon the FBI’s issuance of these same letters. What is more, because the
denial letters at issue are dated between one and three years before Lawson initiated
contact with an EEO counselor (again, construing Lawson’s “2010” contact with an
EEO counselor as having occurred on January 1, 2010 (Compl. ¶ 106)), Lawson has
failed to demonstrate diligence in pursuing her administrative remedies by any stretch
of the imagination. See Washington, 160 F.3d at 753 (finding that a complainant’s lack
of diligence precluded equitable tolling where the complainant filed an EEOC
complaint “over a year” (13 months) after the alleged act of discrimination, in violation
of an 180-day filing deadline); Dyson v. District of Columbia, 710 F.3d 415, 421–22
(D.C. Cir. 2013) (finding that a complainant’s lack of diligence precluded equitable
tolling where the complainant missed a filing deadline by 38 days due to circumstances
that were within her control). In the absence of any evidence that Lawson exercised the
requisite due diligence in pursuing her administrative remedies, or that some

15

extraordinary circumstances impeded Lawson’s ability to pursue those rights, this Court
declines to toll the 45-day reporting deadline.
In a final effort to avoid the dismissal of her Title VII failure-to-hire claims,
Lawson argues that all four denial letters at issue constitute one continuous
discriminatory and retaliatory action. (See Pl.’s Opp’n at 13 (“These letters mailed to
Plaintiff from the FBI Human Resources Division continually provided reasons that
denied Plaintiff’s reinstatement in the FBI SA position.”).) As this Court has already
explained, however, “[d]iscrete acts such as termination, failure to promote, denial of
transfer, or refusal to hire are” acts that occur at a fixed time, and thus an employee
must adhere to the established administrative process for each discrete action for which
she seeks to bring a claim. Morgan, 536 U.S. at 114; see also id. at 113; Nguyen v.
Mabus, 895 F. Supp. 2d 158, 172 (D.D.C. 2012) (“[S]ince the Supreme Court’s decision
in Morgan, the continuing violation theory is restricted to claims akin to hostile work
environment claims because those violations—unlike a discrete act such as firing or
failing to promote an employee—cannot be said to occur on any particular day.”
(internal quotation marks and citation omitted)).
Therefore, the Court rejects Lawson’s argument that her claims are exhausted
with respect to all four denial letters because they constitute a continuous
discriminatory or retaliatory event, and the Court also finds it apparent from the face of
Lawson’s complaint that she failed to contact an EEO counselor within 45 days of the
May 31, 2007, September 2, 2008, and January 7, 2009 denial letters. Thus, the Title
VII discrimination and retaliation claims that arise from these denial letters must be
dismissed. See Fortune v. Holder, 767 F. Supp. 2d 116, 122–23 (D.D.C. 2011)

16

(collecting cases in which courts dismissed Title VII claims on exhaustion grounds
where it was clear that the complainant had not contacted an EEO counselor within 45
days of the alleged act of discrimination). Lawson’s Title VII failure-to-hire claims
that stem from the denial letter of March 26, 2010, will not be dismissed on exhaustion
grounds, because at this juncture, Defendants cannot demonstrate that Lawson failed to
contact an EEO counselor within 45 days of that letter, as Defendants themselves
concede. (See Defs.’ Mot. at 15.)
Defendants do not concede that any exhausted claims were timely presented to
this Court. In this regard, Lawson has requested the opportunity to amend the
complaint “to reflect the date of receipt of the [right-to-sue letter] should the Court hold
in abeyance a decision in regard to this issue” (Pl.’s Opp’n at 12), which this Court has
hereby decided to allow (see the accompanying Order). With this opportunity to amend
her complaint, Lawson will also have a chance to add any additional allegations of fact
that pertain to the March 26, 2010, denial letter—which is the sole remaining basis for
her Title VII failure-to-hire claims (Counts V, VI)—before the Court considers
Defendants’ arguments regarding the sufficiency of the factual allegations in support of
these claims. Once Lawson files the anticipated amended complaint, the Court will
permit Defendants to file a partial motion to dismiss that addresses the Title VII failureto-hire claims arising out of the denial letter of March 26, 2010.
2.

Lawson’s Failure-To-Hire Claims Survive The Motion To Dismiss
To The Extent That They Arise Under The ADEA

In their motion to dismiss, Defendants insist that the failure-to-hire claims that
Lawson has brought under the ADEA (Counts I, II, and III) suffer from the same
fundamental flaws as her Title VII claims—namely, that these claims are both

17

unexhausted and untimely. (See Defs.’ Mot. at 12−15.) In the alternative, Defendants
argue that Lawson’s complaint fails to state any claim for discrimination or retaliation
under the ADEA. (See id. at 15−20.) For the reasons set forth below, this Court
disagrees on both fronts.
a. Defendants Have Not Demonstrated That Lawson’s Age
Discrimination And Retaliation Claims Must Be Dismissed On
Exhaustion Or Timeliness Grounds
Although Lawson’s ADEA failure-to-hire claims arise from the same set of
underlying facts as the corresponding claims that Lawson has brought under Title VII,
the pre-filing procedures that apply under these two statutes are analytically distinct.
Stated simply, Title VII requires a plaintiff to navigate a “maze of administrative
processes[,]” Niskey v. Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017), while an ADEA plaintiff
has a much easier row to hoe when filing a discrimination action, see Chennareddy v.
Bowsher, 935 F.2d 315, 318 (D.C. Cir. 1991). This is because “[a]n ADEA plaintiff has
two means of pursuing his age discrimination claim.” Id. First, a federal employee has
the option of bypassing the administrative process altogether and suing directly in
federal court, subject to certain notice requirements. See 29 U.S.C. § 633a(d).
However, an employee who selects this option must give notice of the lawsuit to the
EEOC “within one hundred and eighty days after the alleged unlawful practice
occurred” and “not less than thirty days[]” prior to the commencement of the action.
Id.; see also Stevens v. Dep’t of the Treasury, 500 U.S. 1, 6−7 (1991) (clarifying that a
plaintiff is required to file her notice—not the civil action itself—within 180 days of
the conduct at issue and at least 30 days prior to the commencement of suit, and
indicating that a plaintiff may wait considerably more than 30 days after filing her

18

notice of intent to sue before filing her lawsuit). Alternatively, an ADEA plaintiff
“may [opt to] invoke the EEOC’s administrative process, and then sue if dissatisfied
with the results.” Rann, 346 F.3d at 195 (citing 29 U.S.C. § 633a(b), (c)).
In the instant case, Defendants do not address whether Lawson actually provided
the EEOC with the requisite notice before seeking to obtain direct judicial review of her
ADEA claims in this Court, as would be required under the first of these two avenues.
Instead, Defendants frame their exhaustion and timeliness arguments solely in terms of
the deadlines applicable within the context of the EEOC administrative process, and
they note in passing that Lawson’s complaint “does not allege that Lawson relied on
any avenue other than the FBI’s administrative avenue for exhaustion of her alleged
ADEA claims.” (Defs.’ Mot. at 14.) But the burden of establishing exhaustion does not
lie with the plaintiff. That is, while it is true that Lawson’s complaint does not allege
that she provided an intent-to-sue notice to the EEOC within 180 days of the alleged
discriminatory acts, or that she waited at least 30 days after doing so to commence suit,
“untimely exhaustion of administrative remedies is an affirmative defense,” and thus
“the defendant bears the burden of pleading and proving it[.]” Bowden, 106 F.3d at 437
(emphasis added). Thus, at this early stage of the instant litigation, dismissal of the
action is only appropriate if the plaintiff’s failure to comply with established procedural
prerequisites is evident on the face of the complaint. See Horsey, 170 F. Supp. 3d at
265. In any event, Defendants here have not meaningfully addressed the separate
ADEA framework or the facts in the complaint that implicate it (if any); therefore, they
have not carried their burden of proving the lack of exhaustion or the untimeliness of
Lawson’s complaint for the purpose of supporting their motion to dismiss.

19

It is also the case that, even if one accepts as true Defendants’ suggestion that
Lawson’s complaint demonstrates that she sought to invoke the second path to judicial
review (i.e., that she sued after filing an EEO complaint regarding her ADEA claims),
Defendants do not automatically prevail with respect to their argument that these claims
are unexhausted and/or untimely. The D.C. Circuit has expressly avoided deciding
whether, having filed an EEOC complaint, an ADEA plaintiff “must reasonably pursue
the process, as an exhaustion requirement would ordinarily entail.” Rann, 346 F.3d at
195 (emphasis in original); see also id. (remarking that the ADEA is silent on this
question). The Supreme Court has similarly declined to reach the issue of whether an
ADEA plaintiff like Lawson is required to press on with respect to any EEO complaint
she has filed and avail herself of all potential administrative remedies before bringing a
lawsuit. See Stevens, 500 U.S. at 9−10 (1991) (explaining that this issue was not
properly before the Court in light of the Solicitor General’s position that “a federal
employee who elects agency review of an age discrimination claim need not exhaust his
administrative remedies”).
In the absence of any argument from Defendants regarding these significant open
legal questions—or, for that matter, any argument tailored to the ADEA framework as
opposed to the procedures that Title VII prescribes—this Court declines, at this time, to
dismiss Lawson’s ADEA claims as unexhausted or untimely. Defendants are, of course,
free to reassert these defenses (along with the appropriate legal and factual support) at a
later stage in this case.

20

b. Defendants Have Not Demonstrated That Lawson’s Age
Discrimination And Retaliation Claims Must Be Dismissed For
Failure To State A Claim
Defendants have also argued, as an alternative to the untimeliness and exhaustion
contentions, that each of Lawson’s ADEA failure-to-hire claims fails to state a claim
upon which relief can be granted. (See Defs.’ Mot. at 15−20.) For the reasons
explained below, this Court disagrees with Defendants’ view of Lawson’s failure-tohire claims that allege discrimination (Count II) and retaliation (Count III) in violation
of the ADEA, and it will allow Lawson to amend the complaint to clarify the basis for
the ADEA failure-to-hire claim that is set forth in Count I.
(i)

Lawson has stated a discrimination claim under the
ADEA because she has alleged sufficient facts to
support the inference that age was a factor in
defendants’ refusals to reinstate her.

The ADEA requires that “[a]ll personnel actions affecting employees or
applicants for employment who are at least 40 years of age . . . in executive agencies
. . . be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). “The
Act’s protections for employees of the federal government” are “more expansive than
those for workers employed in the private sector,” Miller v. Clinton, 687 F.3d 1332,
1336−37 (D.C. Cir. 2012); that is, while a private sector employee must “show that the
challenged personnel action was taken because of age,” a federal employee can prevail
by “show[ing] that the personnel action involved ‘any discrimination based on age[,]’”
Ford v. Mabus, 629 F.3d 198, 205 (D.C. Cir. 2010) (quoting 29 U.S.C. § 633a)
(emphasis added). Accordingly, a federal employee alleging age discrimination must
demonstrate “that age was a factor in the challenged personnel action.” Ford, 629 F.3d
at 206 (emphasis in original). “[A]t the motion-to-dismiss stage, the guiding lodestar is

21

whether, assuming the truth of the factual allegations, . . . the inferences of
discrimination drawn by the plaintiff”—i.e., that age was a factor in the challenged
decision—“are reasonable and plausibly supported.” Townsend v. United States, 236 F.
Supp. 3d 280, 298 (D.D.C. 2017). 7
Notwithstanding Defendants’ arguments to the contrary, Lawson’s complaint
alleges sufficient facts, accepted as true, to state a plausible claim for age
discrimination based on a failure to hire in Count II. Lawson identifies herself as an
“applicant” to the federal government who “is at least 40 years of age” (Compl. ¶ 4);
hence, she is part of the class that the ADEA protects, see 29 U.S.C. § 633a(a).
Moreover, according to her complaint, Lawson previously served for over a decade as
an FBI special agent (see Compl. ¶¶ 10, 13), and was thus “qualified for the FBI SA
position” to which she applied (id. ¶ 19). Despite her record of service and other
qualifications, the FBI allegedly denied Lawson’s applications for reinstatement on four
separate occasions between May 31, 2007 and March 26, 2010. (See id. ¶¶ 20, 25, 28,
32.) And in lieu of reinstating Lawson, “between October 2009 and June 2010[,]” the
FBI purportedly “hired seven applicants who sought reinstatement in the FBI SA

7

To be sure, in order to be entitled to judgment on her failure-to-hire age discrimination claims
ultimately, Lawson might need to resort to the familiar three-part burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973), which requires, among other things, that
a plaintiff establish a prima facie case of discrimination. See id. at 802−05; see also Teneyck v. Omni
Shoreham Hotel, 365 F.3d 1139, 1155 (D.C. Cir. 2004) (listing elements to establish a prima facie case
of discrimination for failure to hire). But “an employment discrimination plaintiff is not required to
plead every fact necessary to establish a prima facie case to survive a motion to dismiss[.]” Jones v.
Air Line Pilots Ass’n, Int’l, 642 F.3d 1100, 1104 (D.C. Cir. 2011) (citing Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 511 (2002)); see also Swierkiewicz, 534 U.S. at 511, 515 (holding that “under a notice
pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case
because the McDonnell Douglas framework does not apply in every employment discrimination case”
and “the Federal Rules do not contain a heightened pleading standard for employment discrimination
suits”); Brown v. Sessoms, 774 F.3d 1016, 1022–1023 (D.C. Cir. 2014) (“We have been clear, however,
that ‘[a]t the motion to dismiss stage, the district court cannot throw out a complaint even if the
plaintiff did not plead the elements of a prima facie case.’” (quoting Brady v. Office of Sergeant at
Arms, 520 F.3d 490, 493 (D.C. Cir. 2008))).

22

position[,]” all of whom “were age 39 and younger[,]” and several of whom did not
possess “a unique or special skill, or ability.” (Id. ¶¶ 39−41.) Lawson’s complaint
further alleges that, in a denial “letter dated January 7, 2009, [Unit Chief] Carrico
advised [Lawson] that she had ‘reached the age’ where she could no longer be
reinstated in the FBI SA position.” (Id. ¶ 28.) This Court agrees with Lawson’s
contention that these facts together are more than sufficient to support a reasonable
inference that she “applied for and was not hired for the FBI SA position because of her
age” in violation of the ADEA. (Id. ¶ 84.)
Defendants’ response is to insist that Lawson’s complaint “fails to state any
disparate treatment claim because it does not show that the FBI treated Lawson’s
request for reinstatement differently because of her age[.]” (Defs.’ Mot. at 17.) This is
so, Defendants argue, because under the FBI reinstatement policy as described in
Lawson’s own complaint, “Lawson’s withdrawal from her FERS [retirement] account
automatically disqualified her from reinstatement.” (Id. (emphasis in original).) Thus,
say Defendants, it was Lawson’s retirement account withdrawal, and not her age, that
was the true cause for the FBI’s refusals to re-hire her. What Defendants overlook is
the fact that the allegations in Lawson’s complaint do not preclude a jury finding that
age was “a” factor in the FBI’s proffered rationale for refusing to reinstate Lawson,
which is all that is required for ADEA claims against federal government employers.
See Ford, 629 F.3d at 206.
Specifically, as alleged in the complaint, Lawson was told that the FBI’s policy
regarding FERS withdrawals and reinstatements turns on the age of the former agent.
(See Compl. ¶¶ 21–22 (asserting that the unit chief of the FBI’s Human Resources

23

Division told her that “a federal law prohibited [her] from repaying [the FERS] amount”
that she had been paid; that “she could not be credited with her prior law enforcement
service years” for retirement purposes; and that due to her age, she “could not earn
twenty years of federal law enforcement service credit by the mandatory separation age
of ‘57’”).) In addition, Lawson’s complaint plainly alleges that the FBI “denied
[Lawson] the FBI SA position because she was 41 years old.” (Id. ¶ 20; see also id.
¶¶ 16, 28, 34.) Therefore, in contending that Lawson’s complaint does not plausibly
allege that the FBI rejected her reinstatement because of her age (see Defs.’ Mot. at 17–
18), Defendants refuse to acknowledge the plain text of the very pleading that they
purportedly analyze.
This is not to suggest that Lawson’s complaint is a model of clarity. The
complaint does contain factual allegations that, if true, tend to indicate that Defendants
decided to forego reinstating Lawson because she had withdrawn money from her FERS
account or because of other reasons that do not relate to discrimination on account of
her age (see, e.g., Compl. ¶ 21 (discussing Lawson’s withdrawal from her FERS
account)), and it is true that, “[i]n some cases, it is possible for a plaintiff to plead too
much; that is, to plead himself out of court by alleging facts that render success on the
merits impossible[,]” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C. Cir.
2000). But this Court’s “role is not to speculate about which factual allegations are
likely to be proved after discovery”; instead, “the only question . . . is whether [Lawson
has] alleged facts that, taken as true, render [her] claim of [discrimination] plausible.”
Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015). For the reasons
explained above, Lawson needs only to include facts that demonstrate that her age was

24

one factor in the FBI’s decisionmaking process, see Ford, 629 F.3d at 206, and in this
regard, this Court finds that she has “nudged [her] claims across the line from
conceivable to plausible,” Twombly, 550 U.S. at 570. 8
(ii)

Lawson has stated a retaliation claim under the ADEA
because she has adequately alleged that defendants
failed to rehire her because she engaged in a protected
activity.

Defendants next insist that Lawson’s complaint fails to state a valid retaliation
claim under the ADEA (Count III) “because it fails to show the requisite causal link
between Lawson’s prior protected activity and the FBI’s denial of her reinstatement
request.” (Defs.’ Mot. at 19.) This argument presents a closer question than
Defendants’ contentions with respect to Lawson’s ADEA discrimination claim, but after
careful consideration of this contention, this Court concludes that Lawson has alleged a
sufficient causal connection between the FBI’s refusals to reinstate her and her 2006–
2007 EEO activity.
The ADEA prohibits an employer from retaliating against a federal-sector
employee because the employee engaged in protected activity by opposing unlawful
employment practices or bringing prior charges of age discrimination. See GomezPerez v. Potter, 553 U.S. 474, 479 (2008). “In the absence of direct evidence of
retaliatory intent, to succeed on a claim for retaliation under . . . the ADEA, [Lawson]

8

Defendants’ contentions that Lawson’s complaint references an improper “comparator” with respect to
the ADEA discrimination claims (see Defs.’ Mot. at 17 (arguing that Lawson’s “alleged comparator is
not a proper comparator”)) and that that 36 of the 37 employees who were reinstated from 2001 to 2010
“did not take a refund from their FERS pension fund” (id. (internal quotation marks and citation
omitted))—even if true—do not demand a different result. The pleading standard at this stage is not
“onerous[,]” McManus v. Kelly, No. 14-1977, 2017 WL 1208395, at *5 (D.D.C. Mar. 31, 2017), and
while “[a]llegations regarding comparators . . . obviously strengthen a discrimination complaint,” this
evidentiary requirement is “inapplicable at the pleading stage.” Nanko Shipping, USA v. Alcoa, Inc.,
850 F.3d 461, 467 (D.C. Cir. 2017).

25

must show that [she] ‘1) engaged in a statutorily protected activity; 2) suffered a
materially adverse action by [her] employer; and that 3) a causal connection existed
between the two.’” Townsend, 236 F. Supp. 3d at 315 (quoting Nurriddin v. Bolden,
818 F.3d 751, 758 n.6 (D.C. Cir. 2016)). Notably, the requisite causal relationship may
be inferred through temporal proximity between the protected act and the adverse
employment action. See id. at 316. However, where causation is predicated on
temporal proximity alone, “the proximity in time must be very close.” Kwon v.
Billington, 370 F. Supp. 2d 177, 187 (D.D.C. 2005) (internal quotation marks and
citation omitted); see also Greer v. Bd. of Trustees of Univ. of D.C., 113 F. Supp. 3d
297, 311 (D.D.C. 2015) (“When relying on temporal proximity alone to demonstrate
causation, there is no bright-line rule, although three months is perceived as the outer
limit.” (citation omitted)). Nevertheless, “[a] large gap between protected activity and
retaliation is not necessarily fatal to a claim when the plaintiff can point to other factors
leading to an inference of causation.” Greer, 113 F. Supp. 3d at 311 (citation omitted).
In the instant case, Lawson alleges that she participated in the informal and
formal EEO complaint process throughout 2006 and 2007, and thereafter, the FBI
repeatedly denied her requests for reinstatement. (See Compl. ¶¶ 90, 94–96.)
Defendants do not dispute that the FBI’s refusal to hire Lawson is a materially adverse
action, nor do they dispute that Lawson’s prior EEO participation constitutes a
protected activity. Thus, the only pertinent disputed issue is whether Lawson’s
complaint alleges sufficient facts related to the causation element to render her claim
plausible. This Court concludes that it does, for at least two reasons.

26

First of all, there is some temporal proximity between Lawson’s alleged
protected activity and the FBI’s decision not to reinstate her. According to the
complaint, Lawson “contacted an EEO counselor, initiated the informal discrimination
complaint counseling phase, and participated in the formal discrimination complaint
process” in “2006–2007[.]” (Id. ¶ 90.) After resigning from her position in July 2006,
and withdrawing her pending EEO complaint at some point in 2007 (see id. ¶¶ 13–14),
Lawson requested reinstatement (see id. ¶¶ 31, 93). Lawson alleges that, at the time she
requested reinstatement, human resources personnel “knew of [her] prior protected EEO
activity in 2006–2007” (id. ¶ 93), and conducted “routine EEO database check[s] to
determine whether an applicant for the FBI SA position had prior EEO activity
involving the FBI” (id. ¶ 92). The complaint says that, although Lawson “qualified for
the FBI SA position” (id. ¶ 91), the FBI denied her requests for reinstatement in letters
dated May 31, 2007, September 2, 2008, January 7, 2009, and March 26, 2010 (see id.
¶¶ 20, 25, 28, 32), and that a “causal connection” exists between her 2006–2007
protected activity and the denial letters “based on the close timing between” the two.
(id. ¶ 96.)
This Court finds that temporal proximity between the administrative processes
related to Lawson’s 2006 EEOC complaint and the FBI’s May 31, 2007 denial letter are
sufficiently close to support the causal inference. In particular, the complaint alleges
that Lawson “initiated the EEOC discrimination complaint process” at some point in
2006 (id. ¶ 12), and that she continued to participate in this process through an
unspecified period in 2007 (id. ¶ 90). “[D]raw[ing] all inferences in [Lawson’s]
favor[,]” Brown, 774 F.3d at 1020 (internal quotation marks and citation omitted), the

27

Court will construe the complaint to allege that Lawson was engaged in pursuing her
administrative EEO claim into at least the early part of 2007, shortly before she
received the May 31, 2007, denial letter. So construed, Lawson has alleged the
requisite temporal proximity between her protected activity and the FBI’s May 31,
2007, refusal to reinstate her. See, e.g., Hamilton v. Geithner, 666 F.3d 1344, 1358
(D.C. Cir. 2012) (holding that a two-month gap between the employee’s protected
activity and the employer’s adverse action was sufficiently brief to support an inference
of retaliation).
The Court recognizes that whether or not Lawson has alleged the requisite causal
link is a closer question with respect to the final three denial letters, dated September 2,
2008, January 7, 2009, and March 26, 2010, respectively. The FBI issued these letters
one to three years after Lawson’s latest protected activity, and “[b]ecause of the time
lapse, [Lawson] cannot rely solely on the time of [the denial letters] to show causation.”
Forman v. Small, 271 F.3d 285, 301 (D.C. Cir. 2001). However, Lawson offers more,
and her additional assertion is the second reason that the Court concludes the complaint
states a sufficient ADEA failure-to-hire retaliation claim.
Specifically, Lawson alleges that human resources personnel performed “an EEO
database check to determine whether an applicant for [the] FBI SA [position] had prior
EEO activity[.]” (Compl. ¶ 46.) This database check helps to bridge the one- to threeyear gap between Lawson’s 2006–2007 EEO activities and her subsequent employment
applications, because, if true, such a check would have alerted the employees to
Lawson’s prior protected activity when they processed her 2008, 2009, and 2010
applications one to three years later. Moreover, this Court is hard-pressed to imagine

28

any non-retaliatory justification for such an “EEO database check” as part of a re-hire
application review. (Id.) The Court notes further that there is nothing in Lawson’s
complaint regarding the FBI’s application process that would render this allegation
manifestly implausible. In other words, if it is true that the FBI conducts “database
check[s]” to determine whether applicants seeking to be reinstated to SA positions have
engaged in prior EEO activity against the FBI, and as a result of this check, the FBI
knew about Lawson’s 2006–2007 EEO complaint when it processed—and denied—her
2008, 2009, and 2010 reinstatement applications, then Lawson’s complaint plausibly
suggests that her applications for reinstatement were denied because she engaged in
protected activity.
Thus, although it presents a closer question, Defendants’ dismissal contentions
regarding causation as it pertains to Lawson’s ADEA retaliation claims are rejected
based on the Court’s conclusion that Lawson’s allegation regarding the FBI’s EEO
database check is sufficient to suggest a causal link between her protected activity and
the challenged conduct.
(iii)

Lawson may amend her complaint to clarify what
type of ADEA claim she intends to raise in Count I.

Finally, this Court must evaluate Defendants’ dismissal arguments related to
Count I, and in doing so, it has observed that, unlike the other ADEA failure-to-hire
claims that are brought in the complaint, Lawson’s complaint is unclear regarding the
nature of the challenge that Lawson is making. That is, at times, Count I appears to
object to the FBI’s reinstatement policy as discriminatory on its face (see, e.g., Compl.
¶ 57, 58, 64, 67, 69 (making allegations that are in the nature of objections to the policy
itself)), but other allegations in Count I suggest that Lawson’s Count I challenge is, in

29

fact, a disparate treatment claim (see, e.g., id. ¶ 65 (alleging that the FBI’s
“discriminatory age-based policy was not applied to every over age 37 reinstatement
applicant who depleted the FERS pension account but was applied to disadvantage
Plaintiff because of her age”)). To make matters worse, Defendants perceive yet
another theory in the interstices of Count I’s allegations of fact; they apparently read
this cause of action “to allege claims of disparate impact” as well as disparate
treatment. (Defs.’ Mot. at 8.)
Until this Court has a better understanding of the theory (or theories) of liability
that Lawson seeks to advance in Count I, it cannot undertake to analyze the sufficiency
of this claim. The three aforementioned theories of liability (i.e., a facial challenge to
the FBI’s policy, a disparate treatment claim, or a disparate impact claim) represent
fundamentally different types of legal claims with different applicable standards. See,
e.g., Ross v. Lockheed Martin Corp., No. 16-cv-2508, 2017 WL 3242237, at *2−3
(D.D.C. July 28, 2017) (describing the differences between disparate treatment and
disparate impact claims). Therefore, Lawson will need to clarify the challenge she
intends to raise in this cause of action before the Court can adequately entertain
Defendants’ arguments in support of dismissing Count I. Accordingly, in the
accompanying Order, the Court permits Lawson to amend her complaint to clarify the
ground (or grounds) on which she seeks relief, and as a result, denies as moot
Defendants’ current motion pertaining to dismissal of Court I.

30

B.

Defendants Have Not Demonstrated That Lawson’s Complaint Fails
To State A Title VII and ADEA Claim For Retaliatory Interference
With The Administrative Processing Of Her EEO Complaint

In addition to the various failure-to-hire claims discussed above, Lawson has
also claimed unlawful retaliation, in violation of the ADEA (Count IV) and Title VII
(Count VII), based on her former supervisor’s alleged interference with, and improper
processing of, Lawson’s EEO complaint in 2010. (See Compl. ¶¶ 100–15; 141–55.) As
Part I.B (supra) explains, Lawson maintains that Enriquez, the Chief of her former FBI
Unit, “knew that [Lawson] filed an EEO complaint against him and other FBI
employees in 2006” (id. ¶ 107), and that when she “participated in the formal
discrimination complaint process in 2010” in connection with the FBI’s failure to
reinstate her as an SA (id.), Enriquez “appeared in” the office tasked with handling
Lawson’s complaint (id. ¶ 108), “supervised [Lawson]’s pending EEO case” (id.), and
“intentionally interfered with [Lawson] in the pending EEO discrimination complaint
process” (id. ¶ 109; see also id. ¶¶ 148–50). The complaint specifically asserts that
Enriquez interfered with the processing of Lawson’s 2010 EEO complaint by means of
“improper complaint processing, approv[ing] the incomplete investigation of Plaintiff’s
claims of discrimination and retaliation, and approv[ing] the omission of any
investigation of her claims of retaliation.” (Id. ¶¶ 109, 150.) And Lawson asserts that
these acts of intentional interference with the EEO-complaint process “establish
retaliation in violation of [Title VII and] the ADEA.” (Id. ¶ 113; see also id. ¶ 154.)
This Court concludes that Defendants have failed to demonstrate that Lawson’s
allegations are deficient in any manner that requires dismissal under Rule 12(b)(6). As
discussed above, to state a claim for retaliation under Title VII and the ADEA, a
plaintiff must plausibly allege that she “1) engaged in a statutorily protected activity;
31

[and] 2) suffered a materially adverse action by [her] employer; and that 3) a causal
connection existed between the two.” Townsend, 236 F. Supp. 3d at 315 (internal
quotation marks and citation omitted). Defendants do not attack Lawson’s retaliatory
interference allegations by reference to any of these three elements; instead,
Defendants’ sole argument is that Lawson’s allegations “are not actionable under Title
VII or the ADEA” (Defs.’ Mot at 21), because “Title VII and the ADEA create a cause
of action for discrimination, not ‘an independent cause of action for the mishandling of
an employee’s discrimination complaints’” (id. at 20 (quoting Douglas-Slade v.
LaHood, 793 F. Supp. 2d 82, 96 (D.D.C. 2011))). But Defendants’ argument
misperceives the retaliatory interference claims that Lawson makes in this complaint. It
is true enough that the mishandling of an EEO complaint, on its own, does not give rise
to an independent cause of action under Title VII or the ADEA. See Douglas-Slade,
793 F. Supp. 2d at 96 (dismissing Title VII claim because plaintiff had merely alleged
“errors and irregularities with respect to the investigation of her discrimination claims
at the administrative level”). But unlike the plaintiff in Douglas-Slade, Lawson alleges
that a supervisor intentionally interfered with the processing of her EEO complaint in
retaliation for prior protected activity. (See Compl. ¶¶ 109–10, 113–14, 150–51; 154.)
In other words, Lawson has not alleged an independent cause of action for the improper
processing of her EEO complaint, as Defendants suggest; rather, she has alleged a claim
of retaliation, which is of course an actionable species of discrimination under both
Title VII and the ADEA. See 42 U.S.C. § 2000e–3(a); see also Gomez-Perez, 553 U.S.
at 479.

32

To the extent that Defendants’ assertion that that Lawson’s retaliatory
interference allegations “are not actionable” (see Defs.’ Mot at 21) is actually intended
to argue that interference with the processing of an EEO complaint is not the sort of
“materially adverse action” that can support a retaliation claim, see Townsend, 236 F.
Supp. 3d at 315, this argument fares no better. It is well established that the antiretaliation provisions of Title VII and the ADEA “extend[] beyond workplace-related or
employment-related retaliatory acts and harm[,]” and encompass any retaliatory acts
that “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006)
(internal quotation marks and citation omitted). The standard for identifying actionable
adverse actions is objective, and it requires courts to “focus[] on the materiality of the
challenged action and the perspective of a reasonable person in the plaintiff’s position”
in order to identify “those acts that are likely to dissuade employees from complaining
or assisting in complaints about discrimination.” Id. at 69–70; see also id. at 68.
This Court has no doubt that, when properly understood, the adverse action
standard is satisfied under the circumstances presented in this case. Just as a reasonable
employee might refrain from filing a discrimination complaint out of fear that a
supervisor would retaliate by reassigning her to different duties or suspending her
without pay, see id. at 70–73, so too might a reasonable employee refrain from
engaging the EEO-complaint process out of a concern that a supervisor’s interference
with the EEO process would render her efforts futile. Thus, in both situations, the
employer’s conduct reasonably might “discourage an employee . . . from bringing
[EEO] discrimination charges” that she otherwise would bring, id. at 70–71; cf.

33

Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C. Cir. 2010) (holding that a jury
could find that adverse action occurred where a supervisor increased the plaintiff’s
workload in order “to keep [her] too busy to file complaints”).
Notably, although some prior decisions in this district have suggested that the
improper processing of an administrative complaint cannot constitute a materially
adverse action sufficient to sustain a claim of retaliation, see Briscoe v. Kerry, 111 F.
Supp. 3d 46, 59 (D.D.C. 2015); Diggs v. Potter, 700 F. Supp. 2d 20, 46 (D.D.C. 2010),
support for that proposition ultimately stems from Keeley v. Small, 391 F. Supp. 2d 30,
45 (D.D.C. 2005), which is a case that was decided prior to the view of the scope of
actionable retaliation that the Supreme Court clarified in Burlington Northern. See
Diggs, 700 F. Supp. 2d at 46 (relying on Keeley without addressing the Supreme
Court’s intervening decision in Burlington Northern); see also Briscoe, 111 F. Supp. 3d
at 59 (relying on Diggs). In Keeley, the judge reasoned that complaints regarding
interference with an EEOC investigation could not form the basis of a Title VII
retaliation claim because an EEOC investigation does not relate to “a condition of
employment[.]” 391 F. Supp. 2d at 45 (citation omitted). But the Supreme Court’s
2006 Burlington Northern opinion spoke definitively to that issue, holding that the
scope of “Title VII’s substantive provision and its antiretaliation provision are not
coterminous[,]” and the latter “is not limited to discriminatory actions that affect the
terms and conditions of employment[,]” id., 548 U.S. at 64, 67.
For the reasons explained above, and in light of Burlington Northern, this Court
concludes that interference with the processing of an EEO complaint plausibly
constitutes the sort of materially adverse action that can support a retaliation claim, and

34

thus Defendants’ motion to dismiss Counts IV and VII on the grounds that such alleged
retaliation is not actionable must be DENIED.
IV.

CONCLUSION
This Court has carefully reviewed Lawson’s complaint and the arguments that

Defendants have raised in their motion to dismiss. While Lawson has failed to exhaust
her administrative remedies fully with respect to most of her failure-to-hire claims
under Title VII, and it is far from clear that Lawson will ultimately be able to prove the
remaining discrimination and retaliation claims she seeks to advance in this action, the
Court finds that Lawson’s complaint alleges sufficient facts to state a claim under the
ADEA for discrimination and retaliation based on the agency’s refusal to reinstate her.
In addition, the Court concludes that Lawson’s complaint states a claim for retaliation
under the ADEA and Title VII based on Defendants’ purported interference with the
processing of her administrative complaint. Finally, the Court will permit Lawson to
amend her complaint in three limited respects: first, Lawson may clarify the claim she
intends to raise in Count I; second, she may plead the date that she purportedly received
the right-to-sue letter that preceded the filing of the instant action; and third, she is
permitted to supplement the factual allegations that support her surviving Title VII
claims. Accordingly, as set forth in the Order accompanying this Memorandum
Opinion, Defendants’ Motion to Dismiss is GRANTED IN PART AND DENIED IN
PART.

Ketanji Brown Jackson

DATE: September 22, 2017

KETANJI BROWN JACKSON
United States District Judge

35