NELSON v. POMPEO

Filing 77

MEMORANDUM OPINION granting in part and denying in part 73 Defendant's Motion to Dismiss. See document for details. Signed by Judge Rudolph Contreras on 08/29/2024. (lcrc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY D. NELSON,
Plaintiff,
v.
ANTHONY J. BLINKEN,
Secretary of State,
Defendant.

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Civil Action No.:

18-1880 (RC)

Re Document No.:

73

MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR PARTIAL DISMISSAL
I. INTRODUCTION
Pro se Plaintiff Timothy Nelson brings this suit under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., against the Secretary of State in his official capacity as head of
the United States Department of State (the “Department”) alleging that the Department engaged
in unlawful employment actions against Nelson. See generally Compl., ECF No. 1. 1
Specifically, Nelson’s complaint alleges claims for retaliation for a protected activity as well as
discrimination motivated by his religion and his spouse’s national origin. Id.
The Court previously denied without prejudice the Department’s prior motion for partial
dismissal and ordered the parties to submit supplemental briefing on whether equitable tolling or
estoppel principles apply to Nelson’s religious and national origin discrimination claims. See
Nelson v. Blinken (“Nelson I”), No. 18-cv-1880, 2023 WL 7156516 (D.D.C. Oct. 31, 2023).

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Due to the inconsistent paragraph and page numbering of the underlying documents,
when citing to the complaint, and other documents filed along with the complaint, the Court uses
the page numbers generated by ECF.

Nelson filed a supplemental brief, see Pl.’s Suppl. Br., ECF No. 71, after which the Department
filed a renewed motion for partial dismissal, see Def.’s Renewed Mot. Partial Dismissal, ECF
No. 73 (“Def.’s Mot. Dismiss”). Plaintiff has filed a memorandum in opposition to the
Department’s motion to dismiss, ECF No. 74 (“Pl.’s Opp’n Mot. Dismiss”), and the Department
filed a reply in support of its motion to dismiss, ECF No. 75, (“Def.’s Reply Supp. Mot.
Dismiss”). For the following reasons, the Court grants in part and denies in part the
Department’s renewed motion for partial dismissal.
II. FACTUAL BACKGROUND
Timothy Nelson is employed by the Department of State. See Compl. at 2, 5. While
employed as a Political/Military Affairs Officer by the Office of Russian Affairs, he used the
Equal Employment Opportunity Commission (“EEOC”) process to report bullying and the
creation of a hostile work environment by his supervisors. Id. at 21–22. When the bullying
continued, Nelson filed a formal EEOC complaint with the Department. Id. at 21. That EEOC
complaint asserted that his supervisors retaliated against him because of his protected EEOC
activity. Id. at 16. As the Court concluded in its earlier opinion, Nelson’s EEOC complaint did
not include claims for religious or national origin discrimination. Nelson I, 2023 WL 7156516,
at *3. And an investigation by the Department, followed by a final agency decision in February
2016, concluded that Nelson’s complaint “did not prove that the Agency subjected him to the
alleged discrimination.” Compl. at 16, 21. Accordingly, Nelson appealed the Department’s final
decision to the EEOC. Id. at 15.
In April 2016, while his case was pending on appeal before the EEOC, Nelson sent the
EEOC a letter as a “supplemental submission responding to the main points of the Final Agency
Decision” with additional allegations against his supervisors in the Department. See id. at 21.

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That letter alleged that—in addition to retaliation for protected activity—his supervisors had also
discriminated against Nelson based on his “deeply held” “personal positions” from his Christian
faith. Id. at 21, 24, 26–27.
Later, in January of 2018, Nelson also sent an email to the Department’s Office of Civil
Rights informing the Department that he had discovered additional documents through an
unrelated agency proceeding that he believed demonstrated that his supervisors at the
Department had also discriminated against him based on his wife’s national origin. See Pl.’s
Suppl. Br., Ex. 1 at 3–4, ECF No. 71-1. The following day, the Department responded that it
was no longer directly processing his EEO complaint because Nelson’s case was pending before
the EEOC, but that because he had provided the additional information “via electronic mail, our
Office will also inform the EEOC of your request for submission of additional information,
which may be classified.” See id. at 3. The Department also stated that it would “provide you or
your representative any update from [the Office of Federal Operations] on how to proceed in the
submission of that information, if you have not received such guidance.” Id. But Nelson
contends that the Department never in fact notified the EEOC of the additional evidence or gave
him the promised guidance on how to submit the information about national origin
discrimination. See Pl.’s Suppl. Br. at 29.
Eventually, in May of 2018, the EEOC affirmed the Department’s final decision, without
addressing Nelson’s additional allegations of religious or national origin discrimination. See
Compl. at 15–18. Accordingly, Nelson filed suit in this Court alleging claims for retaliation for
protected activity as well as discrimination motivated by his religion and his spouse’s national
origin. See Nelson I, 2023 WL 7156516, at *1. This Court concluded that Nelson failed to
adequately exhaust his religious discrimination and national origin claims because he had not

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included those claims in his initial EEOC complaint. Id. at *3. The Court, however, denied
without prejudice the Department’s motion to dismiss and ordered the parties to brief whether
Nelson’s claims were entitled to equitable tolling or estoppel. Id. at *3–4. The parties have now
briefed the issue of equitable tolling and estoppel and the Department has filed a renewed motion
to dismiss on the pleadings.
III. LEGAL STANDARD
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The “[p]leadings include any ‘copy of a
written instrument that is an exhibit to a pleading,’ such as relevant and authentic documents
attached to the complaint.” Dist. No. 1, Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n., AFLCIO v. Liberty Mar. Corp., 933 F.3d 751, 760 (D.C. Cir. 2019) (citation omitted); see also
Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006) (“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.”);
Latson v. Holder, 82 F. Supp. 3d 377, 386 (D.D.C. 2015). To prevail on a Rule 12(c) motion,
“[t]he moving party must demonstrate its entitlement to judgment in its favor, even though the
court evaluating the 12(c) motion will accept as true the allegations in the opponent’s pleadings,
and as false all controverted assertions of the movant.” Liberty Mar. Corp., 933 F.3d at 760–61
(internal quotation marks omitted). As relevant here, the Department’s 12(c) motion is
“functionally equivalent to a Rule 12(b)(6)” motion. Rollins v. Wackenhut Servs., Inc., 703 F.3d
122, 130 (D.C. Cir. 2012). The Court, therefore, accepts Nelson’s allegations as true and draws
“all reasonable inferences” in his favor when assessing the Department’s 12(c) motion. See
Liberty Mar. Corp., 933 F.3d at 761 (citation omitted). “A pro se complaint is to be liberally

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construed and however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Guerrero v. Vilsack, 134 F. Supp. 3d 411, 418 (D.D.C. 2015)
(internal quotation marks omitted).
IV. ANALYSIS
The issue before the Court is whether Nelson’s religious and national origin
discrimination claims should be dismissed because he failed to timely exhaust his administrative
remedies. Individuals “who fail[ ] to comply, to the letter, with administrative deadlines
‘ordinarily will be denied a judicial audience.’” Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir.
1985) (citation omitted). Because the Court has already concluded that Nelson did not timely
administratively exhaust his claims, the issue here turns on whether Nelson’s claims are entitled
to equitable tolling or equitable estoppel despite Nelson’s failure to timely raise them with the
Department. This is so because the administrative time limits contained in Title VII are not
“jurisdictional bars to bringing suit . . . but function[ ] like statutes of limitations,” and “these
time limits are subject to equitable tolling, estoppel, and waiver.” Staropoli v. Donahoe, 786 F.
Supp. 2d 384, 389 (D.D.C. 2011) (citations omitted). “Because untimely exhaustion of
administrative remedies is an affirmative defense, the defendant bears the burden of pleading and
proving it. If the defendant meets its burden, the plaintiff then bears the burden of pleading and
proving facts supporting equitable avoidance of the defense.” Bowden v. United States, 106 F.3d
433, 437 (D.C. Cir. 1997) (citation omitted).
“As a general matter, equitable tolling pauses the running of, or tolls, a statute of
limitations when a litigant has pursued his rights diligently but some extraordinary circumstance
prevents him from bringing a timely action.” Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)
(internal quotation marks omitted). “The party arguing for equitable tolling bears the burden of

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demonstrating entitlement to it.” Young v. Sec. & Exch. Comm’n, 956 F.3d 650, 655 (D.C. Cir.
2020). Equitable tolling is applied only “sparingly.” Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113 (2002). A plaintiff is entitled to equitable tolling “if he shows ‘(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Guerrero, 134 F. Supp. 3d at 429 n.17
(“Equitable tolling under Title VII for federal employees functions the same as it does in private
lawsuits.”).
The burden to plead equitable tolling is heavy, and courts will toll a filing deadline “only
in rare instances where—due to circumstances external to the party’s own conduct—it would be
unconscionable to enforce the limitation period against the party and gross injustice would
result.” Head v. Wilson, 792 F.3d 102, 111 (D.C. Cir. 2015) (internal quotation marks omitted).
Therefore, equitable tolling is not available to a litigant who misses a deadline because of a
“garden variety claim of excusable neglect” or a “simple miscalculation.” Holland, 560 U.S. at
651–52 (internal quotation marks omitted). That said, the D.C. Circuit has held that “[i]n Title
VII cases, equitable tolling of statutes of limitations can occur in several circumstances,”
particularly when a pro se litigant “make[s] diligent but technically defective efforts to act within
a limitations period.” Bowden, 106 F.3d at 438. “Courts consider a plaintiff’s intelligence and
familiarity with the process when determining whether equity counsels in favor of excusing a
failure to exhaust.” Chavers v. Shinseki, 667 F. Supp. 2d 116, 128 (D.D.C. 2009) (internal
quotation marks omitted).
To determine whether a plaintiff has exercised due diligence, judges conduct an
“equitable, often fact-intensive” inquiry, considering “in detail” the facts of each case to decide

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whether a litigant’s efforts were diligent under the circumstances. Holland, 560 U.S. at 653–54
(citation omitted). For instance, the court in Taylor v. Perry St. Preparatory Public Charter
School held that a plaintiff had adequately alleged diligent pursuit of his rights when he alleged
that he had filed a timely EEOC complaint but that the agency had misplaced that complaint.
242 F. Supp. 3d 1, 4–5 (D.D.C. 2017).
Additionally, for a plaintiff’s circumstances to be “sufficiently ‘extraordinary’ to support
equitable tolling, the circumstances that caused a litigant’s delay must have been beyond its
control.” Menominee Indian Tribe of Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014).
“The circumstance that stood in a litigant’s way cannot be a product of that litigant’s own
misunderstanding of the law or tactical mistakes in litigation.” Id. “Rather, equitable tolling is
appropriate only in rare instances where—due to circumstances external to the party’s own
conduct—it would be unconscionable to enforce the limitation period against the party and gross
injustice would result.” Young, 956 F.3d at 656 (internal quotation marks omitted); see also
Chung v. U.S. Dep’t of Just., 333 F.3d 273, 278 (D.C. Cir. 2003) (holding that equitable tolling
applies when “the plaintiff despite all due diligence . . . is unable to obtain vital information
bearing on the existence of his claim” (internal quotation marks omitted)).
Under the similar but distinct doctrine of equitable estoppel, defendants are prevented
from utilizing a statute of limitations defense when they affirmatively misled plaintiffs leading to
the untimely filing. “Equitable estoppel . . . is available only when a plaintiff alleges that the
defendant has engaged in some form of ‘affirmative misconduct’ that prevented a timely filing.”
Feloni v. Mayorkas, No. 22-cv-2094, 2023 WL 3180313, at *5 (D.D.C. May 1, 2023) (internal
quotation marks omitted). “Whereas equitable tolling allows a plaintiff to avoid the bar of the
limitations period if despite all due diligence he is unable to obtain vital information bearing on

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the existence of his claim . . . equitable estoppel in the statute of limitations context prevents a
defendant from asserting untimeliness where the defendant has taken active steps to prevent the
plaintiff from litigating in time.” Currier v. Radio Free Eur./Radio Liberty, Inc., 159 F.3d 1363,
1367 (D.C. Cir. 1998); Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1086 (D.C. Cir. 2007)
(same).
A. Religious Discrimination Claim
Nelson argues that he is entitled to equitable tolling with respect to his religious
discrimination claim. See Pl.’s Suppl. Br. at 3, 5, 7–8, 10–12. As explained above, to qualify for
equitable tolling, Nelson must adequately plead (1) that he diligently pursued his rights and (2)
that some extraordinary circumstance prevented him from timely exhausting his religious
discrimination claim. See Holland, 560 U.S. at 649.
Here, Nelson has not adequately alleged either that he diligently pursued his rights or that
some extraordinary circumstance prevented him from timely exhausting his religious
discrimination claim. Nelson argues that he only realized that he had a religious discrimination
claim upon reviewing the evidence in his case in “retrospect” and that once he discovered his
religious discrimination claim he included that claim in his formal appeal to the EEOC by
referencing that evidence in his April letter to the EEOC. Compl. at 23; Pl.’s Suppl. Br. at 3, 5,
7–8, 10–12. But while a plaintiff’s inability “to obtain vital information bearing on the existence
of his claim” is a proper ground for equitable tolling, Chung, 333 F.3d at 278 (citation omitted),
a plaintiff must still show that he has been pursuing his rights diligently to qualify for equitable
tolling, see Holland, 560 U.S. at 649. Although Nelson explains that he did not fully understand
why his supervisors had been bullying him when he initially filed his EEOC complaint, his

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filings reveal that he had information about the Department’s alleged religious discrimination
while his EEOC complaint was pending before the Department. See Compl. at 22–23.
Nelson’s letter to the EEOC in April of 2016—which is included with his complaint—
indicates that Nelson had the relevant information about his supervisors’ alleged religious
discriminatory animus as early as 2014. See id. at 24–26. Nelson explains in that letter that in a
2014 counseling session prior to the filing of his EEOC complaint, Nelson’s supervisor made
comments that were dismissive of his “deeply held” “personal positions.” See id. at 23–24.
Nelson’s letter also states that his supervisor’s 2014 performance evaluation was critical of
Nelson’s “deeply held” “personal beliefs” and “convictions.” Id. at 26. And Nelson’s letter
states that his supervisor “cast aspersion on another Christian who had suggested talking with
Putin via a particular Christian intermediary whom Putin respected.” Id. at 27.
It appears from the records attached to the complaint, therefore, that Nelson had the
information to support his religious discrimination claim before the Department made its final
decision on his initial EEOC complaint. Nelson explained, however, that he only realized he had
a religious discrimination claim when he took a “closer look at the overwhelming evidence . . . in
retrospect.” Id. at 23 (emphasis added). Unlike situations in which plaintiffs have no way of
knowing that they have a claim, see Currier, 159 F.3d at 1367 (explaining that tolling may apply
when “if despite all due diligence [a plaintiff] is unable to obtain vital information bearing on the
existence of his claim”), Nelson had the relevant facts for his religious discrimination claim yet
failed to include those facts in his initial EEOC complaint or amend his EEOC complaint before
the Department’s final decision, see Bender v. Rocky Mountain Drilling Assocs., 648 F. Supp.
330, 335 (D.D.C. 1986) (explaining that a “limitation period is not tolled if a plaintiff has a
reasonable basis to suspect a wrong, and fails to exercise due diligence to investigate the

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matter”). Nelson himself characterized the evidence that he had as “overwhelming.” Compl. at
23. This is not a situation where Nelson was, “despite all due diligence,” “unable to obtain vital
information bearing on the existence of his claim.” Barbett v. Logistics Application, Inc., 845 F.
Supp. 2d 164, 167 (D.D.C. 2012) (citation omitted).
Although the Court recognizes that Nelson did eventually attempt to alert the EEOC that
his supervisors had discriminated against him based on his religious beliefs, his attempt was too
little too late. See 29 C.F.R. § 1614.106(d) (describing how plaintiffs may amend their EEOC
complaints). Because Nelson had the information necessary to ask to amend his EEOC
complaint before the Department’s final decision—and yet failed to do so—the Court concludes
that Nelson did not diligently pursue his rights.
Relatedly, the Court also concludes that no extraordinary circumstances prevented
Nelson from amending his EEOC complaint to include his religious discrimination claim.
Extraordinary circumstances exist when some barrier outside of a plaintiff’s control prevents the
plaintiff from filing within the prescribed time. See Barnes v. Contee, No. 19-cv-2190, 2022 WL
4355273, at *4 (D.D.C. Sept. 20, 2022). As explained above, it appears that Nelson had the
information underlying his religious discrimination claim by 2014—before the Department
issued its final decision. At that point in the proceedings, a mechanism existed for Nelson to
amend his EEOC complaint to add a religious discrimination claim. See 29 C.F.R.
§ 1614.106(d) (explaining method to amend EEOC complaint). The fact that Nelson did not
further investigate his case and amend his EEOC complaint to include a claim of religious
discrimination is an example of a “garden variety claim of excusable neglect” or a “simple
miscalculation.” Holland, 560 U.S. at 651–52 (internal quotation marks omitted); see also
Young, 956 F.3d at 656 (explaining that a “garden variety claim of excusable neglect” is

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insufficient for equitable tolling (citation omitted)). It is immaterial that no one informed Nelson
that he could seek to amend his complaint to include that claim because “ignorance of the law or
unfamiliarity with the legal process will not excuse [a litigant’s] untimely filing, nor will a lack
of representation during the applicable filing period.” United States v. Cicero, 214 F.3d 199, 203
(D.C. Cir. 2000). Moreover, even after his late discovery of his religious discrimination claim,
Nelson could have attempted to file a new claim at the Department rather than simply sending a
letter to the EEOC. See Def.’s Mot. Dismiss at 13. The EEOC regulations require that plaintiffs
include the bases for their claims in their EEOC complaints and if a plaintiff would like to add an
additional claim in his EEOC adjudication he must do so by amending his complaint. See 29
C.F.R. § 1614.106. Nelson did not seek to amend his EEOC complaint. See Menominee Indian
Tribe, 764 F.3d at 58 (“The circumstance that stood in a litigant’s way cannot be a product of
that litigant’s own misunderstanding of the law or tactical mistakes in litigation.”). It is Nelson’s
burden to show that he was unable to raise his religious discrimination claim at the Department
level, see Bowden, 106 F.3d at 437, and he has not satisfied that burden here. Because Nelson
had the information that he now uses to justify his religious discrimination claim at a time when
he could have amended his EEOC complaint yet did not do so, the Court concludes that equity
does not require tolling Nelson’s religious discrimination claim. 2

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Equitable estoppel does not apply to Nelson’s claim for religious discrimination either
because Nelson points to no affirmatively false representation on the part of the Department that
was intended to trick Nelson into untimely filing his EEOC complaint. See Hall v. Dep’t of
Com., No. 16-cv-1619, 2018 WL 2002483, at *5 (D.D.C. Apr. 30, 2018) (explaining that “[a]n
agency’s mere failure to provide information about the EEO process reflects passive rather than
affirmative conduct and is not enough to warrant invoking equitable estoppel” (cleaned up)).
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B. National Origin Discrimination
Nelson separately argues that he is entitled to equitable tolling or equitable estoppel with
respect to his claim for national origin discrimination. The Court addresses these arguments in
turn.
1. Equitable Tolling
As already explained, to plead facts sufficient for equitable tolling, a plaintiff must allege
(1) that he diligently pursued his rights and (2) that extraordinary circumstances prevented him
from timely exhausting his claim. See Holland, 560 U.S. at 649. The Court concludes that
Nelson diligently pursued his rights with respect to his national origin claim and that
extraordinary circumstances prevented him from timely exhausting that claim.
As explained by Nelson, Nelson attempted “myriad times” to obtain contemporaneous
emails from his supervisors but the Department refused to disclose those emails to him until
forced to do so by the Foreign Service Grievance Board in an unrelated agency proceeding. See
Pl.’s Opp’n Mot. Dismiss at 12. Nelson contends that the reason he was not able to obtain this
evidence prior to his 2018 email to the Department was because the Department denied him
access to the discovery materials that he sought, which contained the information about his
supervisors’ national origin discrimination. See Pl.’s Suppl. Br. at 7–8. Nelson argues that the
Department additionally prohibited access to these materials by improperly classifying
documents so that he could not access them. See id. at 13–14. And Nelson says that because the
information he wished to show the EEOC was improperly classified, he was not able to present
that information to the EEOC. Id. at 14.
To begin, it appears to the Court that Nelson’s inability to access relevant information
about the Department’s alleged national origin discrimination constitutes an extraordinary

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circumstance. See Chung, 333 F.3d at 278 (holding that equitable tolling applies when “the
plaintiff despite all due diligence . . . is unable to obtain vital information bearing on the
existence of his claim” (internal quotation marks omitted)); Singletary v. Dist. of Columbia, 225
F. Supp. 2d 43, 60 (D.D.C. 2002) (“When the employee is excusably ignorant of the employer’s
discriminatory act or the existence of a claim, [equitable tolling] may be invoked to toll the
statutory period.”); Sellers v. Nielsen, 376 F. Supp. 3d 84, 94 (D.D.C. 2019) (“[I]f an employee
did not at the time know or have reason to know that an employment decision was discriminatory
in nature, the time limits for filing an administrative complaint may be tolled.” (citation
omitted)). This is so because, as alleged by Nelson, the Department physically prevented Nelson
from accessing relevant materials and improperly classified those materials so that he could not
use them. See Pl.’s Suppl. Br. at 7–8, 13–14 (“HR provided him with a safe for his sole use but
subsequently denied him access to his evidence . . . .”); see also Compl. at 8–9. Read in the light
most favorable to Nelson, the Court concludes that Nelson’s complaint, and the documents
referenced therein, allege that Nelson was unable to obtain vital information bearing on the
existence of his national origin claim despite his diligent attempts to obtain that evidence. See
Compl. at 8–9; see also Pl.’s Suppl. Br. at 4 (“The Department is accustomed to misusing
classification to hide managerial misconduct and is notoriously inept at removing classifications
from law-breaking communications.”); id. at 6 (“The Department even took measures repeatedly
to hide that evidence of its wrongdoing.”).
The Court also concludes that Nelson diligently pursued his rights with respect to his
national origin claim. Nelson appears to have sought discovery of the underlying material that
he relies on for his national origin discrimination claim for several years without success. See
Pl.’s Opp’n Mot. Dismiss at 10 (“Plaintiff has asked myriad times for those folders and for any

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appropriate authority to view them as they contain the contemporaneous writings of management
regarding their actions in this case.”); Pl.’s Suppl. Br. at 10, 13 (describing efforts to obtain
evidence that the Department initially prevented him from accessing). And it appears from the
record in this case that Nelson promptly informed the Department of his national origin claim
after he obtained access to evidence of those claims. See Pl.’s Suppl. Br., Ex. 1 at 4–5. Nelson
emailed the Department’s Office of Civil Rights that he had “just found, via discovery in a
separate . . . case” documents that revealed that his supervisors’ actions “were additionally
motivated in part by discrimination against national origin.” Id. Although Nelson did not notify
the EEOC of this information directly, he did notify the Department. Id. And the Department
informed Nelson that it would forward his message to the EEOC. Id. Moreover, it would have
been fruitless for Nelson to inform the EEOC directly even if he had done so because, as the
Department explains in its motion to dismiss, “EEOC regulations do not provide for amendment”
to an EEOC complaint once an EEOC case is on appeal before the EEOC. See Def.’s Mot.
Dismiss at 12. Accordingly, the Court concludes that extraordinary circumstances beyond
Nelson’s control prevented Nelson from learning about his national origin claim until 2018 and
from amending his EEOC complaint at that time. And Nelson timely filed suit in this Court
shortly after the EEOC’s decision affirming the Department’s final decision. See generally
Compl. Therefore, the Court concludes that Nelson is entitled to equitable tolling of his national
origin discrimination claim.
2. Equitable Estoppel
Nelson also appears to argue that he is entitled to equitable estoppel regarding his
national origin discrimination claim. See Pl.’s Suppl. Br. at 3 (“Misleading plaintiffs and being
unresponsive as to proper process would only serve to enable eventual immunity from

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accountability.”). “[E]quitable estoppel in the statute of limitations context prevents a defendant
from asserting untimeliness where the defendant has taken active steps to prevent the plaintiff
from litigating in time.” Currier, 159 F.3d at 1367; Jankovic, 494 F.3d at 1086 (“A defendant
who engages in ‘inequitable conduct’ can be equitably estopped from invoking the statute of
limitations.” (quoting Chung, 333 F.3d at 278)).
Courts have “excused parties who were misled about the running of a limitations period
. . . by a government official’s advice upon which they reasonably relied.” Bowden, 106 F.3d at
438. For instance, in Hairston v. Tapella, the court held that an EEOC counselor’s affirmative
advice that a plaintiff should withhold the filing of a formal complaint until he accrued more
evidence, which led to plaintiff’s failure to file within the limitation period, was a sufficient
ground for estoppel. 664 F. Supp. 2d 106, 113 (D.D.C. 2009). But courts in this circuit have
also acknowledged “the Supreme Court’s powerful cautions against application of the doctrine
[of equitable estoppel] to the government as normally barring its use to undercut statutory
exhaustion requirements.” Rann v. Chao, 346 F.3d 192, 197 (D.C. Cir. 2003) (citation omitted).
Before a court concludes that equitable estoppel is warranted, the plaintiff must allege facts
supporting: (1) that the government made a “false representation” with “a purpose to invite
[in]action by the party to whom the representation was made”; (2) that the plaintiff was ignorant
of the “true facts”; (3) that the plaintiff relied on the misrepresentation; (4) “injustice” from the
government’s conduct; and (5) that there would be no “undue damage to the public interest”
from the application of equitable estoppel. Rahimi v. Weinstein, 271 F. Supp. 3d 98, 103
(D.D.C. 2017) (quoting ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988)).
Although the bar to adequately plead equitable estoppel is high, the Court concludes that
equitable estoppel applies to Nelson’s national origin claim given the Department’s misleading

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response to Nelson’s email regarding that claim. To recap, Nelson asserts that the Department
represented to him that it would “inform the EEOC of [his] request for submission of additional
information” and that it would “provide . . . any update from [the Office of Federal Operations]
on how to proceed in the submission of that information.” Pl.’s Suppl. Br., Ex. 1 at 3; see also
Pl.’s Suppl. Br. at 29. And Nelson contends that the Department’s statement misled him so that
he would not take other steps to preserve his national origin claim. See Pl.’s Suppl. Br. at 3.
When viewed in the light most favorable to him and with inferences drawn in his favor,
Nelson’s complaint alleges all of the relevant elements necessary for equitable estoppel. First,
Nelson has alleged that the Department affirmatively made a false representation when it told
him that it would forward his supplemental information to the EEOC and that it would notify
him of what additional steps he should take to submit his national origin discrimination claim.
See Compl. at 6; Pl.s Suppl. Br. at 3. In support of this allegation, Nelson points to a specific
email from the Department’s Office Civil Rights that stated “[a]s you have provided [the Office
of Federal Operations] with this request via electronic mail, our Office will also inform the
EEOC of your request for submission of additional information” and that the Department would
“provide you or your representative any update from [the Office of Federal Operations] on how
to proceed in the submission of that information, if you have not received such guidance.” See
Pl.’s Suppl. Br., Ex. 1 at 3. And Nelson has alleged—and the Department does not appear to
contest—that the Department did not, in fact, forward the information to the EEOC or inform
him of how he could submit that information. See Pl.’s Suppl. Br. at 29; see also Def.’s Mot.
Dismiss at 12 (“The Department has not been able to identify contemporaneous emails indicating
that [the Department] communicated further with the EEOC about the additional information that
Plaintiff had sent.”).

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Second, Nelson was ignorant of the fact that the Department would not actually inform
him of how to raise a national origin claim. In response to the Department’s misleading
statement, Nelson thanked the Department and informed the Department that he was waiting to
hear how to proceed to provide information to the EEOC. See Pl.’s Suppl. Br., Ex. 1 at 2. Third,
Nelson relied on the Department’s representation that it would inform him of what he needed to
do to raise a national origin discrimination claim with the EEOC. Subsequent emails indicate
that Nelson believed that informing the Department of his national origin claim would allow that
claim to be brought to the EEOC’s attention. See id. (“You will note that I raised the national
origin discrimination the day I discovered the documents that so clearly evidenced it . . . .”).
Fourth, the Court concludes that it would be unjust to permit the Department to mislead
Nelson about submitting his supplemental information to the EEOC. The Department’s email
response at the very least implied to Nelson that his supplemental information about national
origin discrimination would be brought to the EEOC’s attention and that the Department would
inform him of how to proceed with that information. It would be unjust to permit the
Department to now use a limitations argument to prevent Nelson from bringing his national
origin claim. And fifth, the Court finds that applying equitable estoppel here would not unduly
damage any public interest. This is so because “Title VII reflects the strong public interest in
eradicating discrimination from the workplace” and applying equitable estoppel here effectuates
that interest. See America v. Preston, 468 F. Supp. 2d 118, 124 (D.D.C. 2006) (citation omitted).
Additionally, “the public interest in ensuring that the Government can enforce the law free from
estoppel [may] be outweighed by the countervailing interest of citizens in some minimum
standard of decency, honor, and reliability in their dealings with their Government.” Heckler v.
Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 60–61 (1984); Bunting v. R.R. Ret.

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Bd., 7 F.3d 232 (6th Cir. 1993) (concluding that public interest would not be harmed by estoppel
where government misled plaintiff leading to serious injustice). Accordingly, the Court
concludes that equitable estoppel applies to prevent the Department from utilizing a timeliness
defense with respect to Nelson’s national origin discrimination claim.
* * *
Even if the Court finds equitable tolling and equitable estoppel, however, the Court must
determine whether to instruct Nelson to file—and attempt to exhaust—his national origin
discrimination claim at the Department in the first instance. As relevant here, the futility
exception to exhaustion “excuses a party from exhausting [his] administrative remedies where
resort to the administrative process would be futile.” Hous. Study Group v. Kemp, 739 F. Supp.
633, 639 (D.D.C. 1990). And “[r]esort to the administrative process is ‘futile’ if ‘the agency will
almost certainly deny any relief either because it has a preconceived position on, or lacks
jurisdiction over, the matter.’” Id. (quoting Randolph-Sheppard Vendors of Am. v. Weinberger,
795 F.2d 90, 107 (D.C. Cir. 1986)).
The Court concludes that requiring Nelson to file his national origin discrimination claim
with the EEOC in the first instance would be futile in this case. As the Department itself
acknowledges, if the Court were to instruct Nelson to pursue exhaustion with the Department in
the first instance, “the Department expects that it would find that Plaintiff was not entitled to
equitable tolling for the period between the time of the alleged acts in 2014 and the present.”
Def.’s Mot. Dismiss at 9; see also Def.’s Reply Supp. Mot. Dismiss at 3 (arguing that “even
evaluated under the equitable estoppel framework, Plaintiff would not be entitled to relief”).
Furthermore, as alleged by Nelson, the Department has consistently attempted to prevent Nelson
from filing a claim or returning to service on the Russian desk. See Pl.’s Suppl. Br. at 8–9; id. at

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12–14 (describing Department’s “pre-judged fears” and efforts to avoid providing evidence).
Given the Department’s position in this litigation with respect to Nelson’s claim and the
Department’s alleged actions of making evidence unavailable, the Court concludes that
dismissing the national original claim without prejudice and requiring Nelson to re-file with the
Department in the first instance would be futile because Nelson alleges that the Department has a
preconceived position on the issues in this case. Accordingly, the Court denies the Department’s
motion to dismiss with respect to Nelson’s national origin discrimination claim.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Renewed Motion for Partial Dismissal (ECF No. 73). An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: August 29, 2024

RUDOLPH CONTRERAS
United States District Judge

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