NICHOLSON v. MABUS
MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 6/27/2017. (lcckk1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 16-2006 (CKK)
RAYMOND EDWIN MABUS, JR.,
(June 27, 2017)
Presently before the Court is Defendant’s  Motion to Dismiss or, in the
Alternative, for Partial Summary Judgment. Plaintiff, proceeding pro se, brings claims
against Defendant Mabus in his official capacity as Secretary of the Navy for gender and
age discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.
Plaintiff’s action is predicated on him allegedly being denied, because of his gender and
age, an “opportunity to compete for a full-time position as a Custodial Worker . . . .” Compl.
at 2. That position was allegedly filled “with a younger female with less training and
experience than [Plaintiff].” Id. The complaint also appears to contain a putative claim
under the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”), which
has not been challenged by Defendant in the pending motion.
The Court does not address the merits of Plaintiff’s age and gender discrimination
claims, as they must be dismissed pursuant to binding precedent of the Unites States Court
of Appeals for the District of Columbia Circuit (“D.C. Circuit”). Plaintiff pursued an
administrative appeal with the Equal Employment Opportunity Commission (“EEOC”),
and was consequently required by statute to wait 180 days before filing suit with this Court.
Because Plaintiff waited less than the 180 days, and because no equitable factors weigh in
favor of excusing this premature filing, Plaintiff’s age and gender discrimination claims
must be dismissed. Accordingly, upon consideration of the pleadings, 1 the relevant legal
authorities, and the record for purposes of this motion, the Court GRANTS Defendant’s
 Motion to Dismiss, and Plaintiff’s age and gender discrimination claims are
DISMISSED WITHOUT PREJUDICE.
I. LEGAL STANDARD
Defendant, inter alia, moves to dismiss for “failure to state a claim upon which
relief can be granted” pursuant to Federal Rule of Civil Procedure 12(b)(6). “[A] complaint
[does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.
In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the
The Court’s consideration has focused on the following documents:
Complaint, ECF No. 1;
Def.’s Mot. to Dismiss or, in the Alternative, for Partial Summ. J., ECF No. 6;
Pl.’s Resp. to Mot. to Dismiss, ECF No. 9.
The Court has received and reviewed the additional evidence of administrative proceedings
submitted by Plaintiff, ECF No. 11, but these do not have bearing on the pending motion.
In addition, the Court notes that Defendant has not filed a reply memorandum. See Minute
Order, Feb. 15, 2017.
complaint, documents attached as exhibits or incorporated by reference in the complaint,”
or “documents upon which the plaintiff’s complaint necessarily relies even if the document
is produced not by the plaintiff in the complaint but by the defendant in a motion to
dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117,
119 (D.D.C. 2011) (internal quotation marks omitted). The court may also consider
documents in the public record of which the court may take judicial notice. Abhe &
Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). In particular, on a motion to
dismiss, the Court “may look to [the] record of another proceeding to avoid unnecessary
proceedings when an undisputed fact on the public record makes it clear that the plaintiff
does not state a claim upon which relief could be granted.” Covad Commc’ns Co. v. Bell
Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (internal quotation marks omitted).
Accordingly, for purposes of the pending motion, the Court takes judicial notice of
the Department of the Navy’s Final Agency Decision, ECF No. 6-2, at 158 (“FAD”), and
a letter issued by the EEOC to Plaintiff stating the docket number of his appeal, and the
date it was filed, ECF No. 6-2, at 167 (“EEOC Letter”). Grant v. Dep’t of Treasury, 194 F.
Supp. 3d 25, 28 n.2 (D.D.C. 2016) (“Final Agency Decision . . . [is] official, public
document subject to judicial notice”); Peart v. Latham & Watkins LLP, 985 F. Supp. 2d
72, 81 (D.D.C. 2013) (finding it “appropriate to take judicial notice of the facts contained
in the . . . EEOC letters as they ‘can be accurately and readily determined’ from a public
agency proceeding, the accuracy of which ‘cannot reasonably be questioned’” (citing Fed.
R. Evid. 201(b)(2))). Judicial notice is taken solely for purposes of ascertaining the date
the FAD was issued (August 11, 2016), the claims addressed in the FAD, and the date
Plaintiff filed an appeal of the FAD with the EEOC (August 18, 2016).
As noted, the Court may take judicial notice of the FAD and when it was filed.
Review of the FAD indicates that Plaintiff sought administrative review of the age and
gender discrimination claims at issue in this action. ECF No. 6-2, at 158. The Navy denied
those claims in the FAD on August 11, 2016, and Plaintiff chose to pursue an appeal of the
FAD with the EEOC on August 18, 2016. Id. at 167. As a result of this decision, Plaintiff
was required by statute to “wait 180 days, absent final action by the EEOC, before filing a
lawsuit in the federal district court . . . .” Murthy v. Vilsack, 609 F.3d 460, 465 (D.C. Cir.
2010) (citing 42 U.S.C. § 2000e-16(c)). In Murthy, the D.C. Circuit established that the
180-day waiting period found in section 2000e-16(c) is mandatory; in other words, if a
plaintiff chooses to pursue an EEOC appeal, he must wait 180 days before filing suit in
federal court, unless the EEOC issues a decision before the 180-day period expires.
Nonetheless, the waiting period is not jurisdictional, and the Court may consider
whether equitable factors excuse the failure to wait. See Martini v. Fed. Nat. Mortg. Ass’n,
178 F.3d 1336, 1348 (D.C. Cir. 1999) (finding that the analogous “180–day waiting period
[of section 2000e–5(b)] is not jurisdictional”); Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982) (“filing a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling”). Here, Plaintiff plainly
failed to wait 180 days after filing his appeal with the EEOC before bringing suit in federal
court—the case was filed on October 7, 2016, only 50 days after Plaintiff lodged an appeal
with the EEOC—and no equitable factors excusing that failure are apparent from the
Complaint, the pleadings, or the record as a whole for purposes of the pending motion.
Accordingly, Plaintiff’s age and gender discrimination claims must be dismissed. See
Maybank v. Speer, No. CV 16-1681 (RDM), 2017 WL 1750253, at *2 (D.D.C. May 3,
2017) (dismissing discrimination claims against the United States Army for failure to wait
180 days after filing EEOC appeal).
For the foregoing reasons, the Court GRANTS Defendant’s  Motion to Dismiss.
Plaintiff’s age and gender discrimination claims are DISMISSED WITHOUT
An appropriate Order accompanies this Memorandum Opinion.
Dated: June 27, 2017
United States District Judge
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