MILLER v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION

Filing 30

OPINION. Signed by Judge Kevin McNulty on 9/6/2019. (sms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HILTON MILLER,
.

Plaintiff,

Civ. No. 18-8040 (KM/MAH)

V.

OPINION

SOCIAL SECURITY ADMINISTRATION
and NANCY BERRYHILL, ACTING
COMMISSIONER,
Defendants

KEVIN MCNULTY. U.S.D.J.:

The plaintiff, Hilton Miller, is an administrative law judge (“ALP’) in the
Social Security Administration (“SSA”J. His Amended Complaint asserts claims
of workplace discrimination and retaliation under Title VII of the Civil Rights
Act of 1964. Although it lumps them together, the Amended Complaint asserts
three distinct claims. Claim 1 is that the SSA discriminatorily denied Judge
Miller appointment as hearing office chief administrative law judge (“HOCALJ”)
in 2014. Claim 2 is that SSA, for discriminatory or retaliatory reasons,
terminated his temporary position as acting HOCALJ in 2016. Claim 3 is that
SSA again denied him appointment as HOCALJ in 2017.
Defendant has moved to dismiss the first and third claims based on
failure to exhaust administrative remedies. For the reasons stated herein, that
motion is granted.
I.

Standard

Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a
claim upon which relief can be granted. The defendant, as the moving party,
bears the burden of showing that no claim has been stated. Animal Sci.
Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011).
For the purposes of a motion to dismiss, the facts alleged in the complaint are
1

accepted as true and all reasonable inferences are drawn in favor of the
plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp.
of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiffs obligation to
provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and a formulthc recitation of the elements of a cause of action will
not do.” Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a
‘showing’ rather than a blanket assertion of an entitlement to relief” (citation
omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a
plaintiffs right to relief above a speculative level, so that a claim is “plausible
on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.
Assocs., LLC v, Huntington Nat’? Bank, 712 F.3d 165, 169 (3d Cir. 2013).
That facial-plausibility standard is met “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft u. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “jt]he plausibility standard
is not akin to a ‘probability requirement’

...

it asks for more than a sheer

possibility.” Id.
When deciding a motion to dismiss, a court typically does not consider
matters outside the pleadings. However, a court may consider documents that
are “integral to or explicitly relied upon in the complaint” or any “undisputedly
authentic document that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiffs claims are based on the document.” In re Rockefeller
Ctr. Props., Inc. Sea Litig., 184 F.3d 280, 287 (3d Cir. 1999) (emphasis and
citations omitted); see In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125,
133 n.7 (3d Cir. 2016); Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
In particular, courts considering motions to dismiss have relied on EEO
files that are integral to the allegations of the complaint. See, e.g., Smith u.

2

Pullman, 420 F. App’x 208, 213 (3d Cir. 2011) (considering EEO documents in

connection with a claim of failure to exhaust administrative remedies); Saba v.
Middlesex Cty. Rd. of Soc. Servs., No. 16-CV-4712 (BRM), 2017 WL 2829618, at
*5 (D.N.J. June 30, 2017); Cummings v. Princeton Univ., No. 15-CV-8587 (FLW),
2016 WL 6434561, at *12 (D.N.J. Oct. 31, 2016). With the motion to dismiss,
the SSA has submitted two declarations attaching documents from the EEO
administrative proceedings. (P-L Deci. (DE 17-1); Crawf. Dccl. (DE 17-2))’
As regards exhaustion of remedies, such documents are considered not
for their truth but only for their legal effect. Further, the plaintiff does not seem
to dispute the issue of what claims he raised at the administrative level; he
only disputes the legal necessity of doing so as a matter of law.2 I will therefore
consider certain of the EEO documents here.
Discussion

II.

A. The Title VII Exhaustion Requirement
Plaintiff Hilton Miller, an administrative law judge (AW) employed by the
Social Security Administration (“SSA”), claims that he has been the victim of
racial discrimination in the workplace. He has filed this action against SSA
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§

2000 et seq.

For ease of reference, certain items from the record will be abbreviated
throughout this Opinion as follows:
DE

=

Docket entry number in this case;

AC

=

Amended Complaint (DE 7)

SSA Brf
P1. Brf

Defendants’ Brief in support of motion to dismiss (DE 17-1)
Plaintiffs Brief in opposition to motion to dismiss (DE 20)

SSA Reply
P-L Dccl.

=

Defendants’ Reply Brief in support of motion to dismiss (DE 24)
Declaration of Reita Pierre-Louis and attached Exhibits (DE 17-2)

=

Declaration of Monika Crawford and attached Exhibits (DE 17-3)
2
I have taken a more cautious approach where the complaint adequately alleged
exhaustion of administrative remedies and the facts surrounding exhaustion appeared
to be disputed. See DeSantis v. New Jersey Transit, 103 F. Supp. 3d 583, 592 (D.N.J.
2015) (declining to consider EEO documents on Rule l2(b)(6) motion).
Crawf. DecI.

=

3

With respect to Title VII, the government has conditioned its waiver of
sovereign immunity on “rigorous administrative exhaustion requirements and
time limitations.” Brown v. GSA, 425 U.S. 820, 833 (1976).
‘It is a basic tenet of administrative law that a plaintiff must
exhaust all required administrative remedies before bringing a
claim for judicial relief.’” Slitigland v. Donahoe, 542 F. App’x 189,
191 (3d Cir. 2013) (quoting Robinson v. Dalton, 107 F.3d 1018,
1020 (3d Cir. 1997)). “In particular, ‘[tjhe Supreme Court has
explained that when Title VII remedies are available, they must be
exhausted before a plaintiff may file suit.’” Id. (quoting Spence a
Straw, 54 F.3d 196, 200 (3d Cir. 1995)). The Third Circuit has
“explained that the purposes of the exhaustion requirement are to
promote administrative efficiency, ‘respectj I executive autonomy
by allowing an agency the opportunity to correct its own errors,’
provide courts with the benefit of an agency’s expertise, and serve
judicial economy by having the administrative agency compile the
factual record.” Robinson, 107 F.3d at 1020 (quoting Heywood v.
Cruzan Motors, Inc., 792 F.2d 367, 370 (3d Cir. 1986)).
“Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e—16,
establishes the virtually exclusive remedy for federal employees
who allege discrimination in the workplace.” Green v. Potter, 687 F.
Supp. 2d 502, 513 (D.N.J. 2009) (Simandle, C.J.), aff’d sub nom.
Green v. Postmaster Gen. of U.S., 437 F. App’x 174 (3d Cir. 2011).
Exhaustion under Title VII “requires both consultation with an
agency counselor and filing a formal EEOC complaint within the
required times.” Robinson, 107 F.3d at 1021.
Paul a Tsoukaris, No. CV135891KMJBC, 2017 WL 1033771, at *6 (D.N.J. Mar.

17, 2017) (footnotes omitted).
More specifically, exhaustion of remedies in the Title VII context has
three required steps:
First, the employee must contact an EEO counselor within 45 days

of the effective date of any employment action;
Second, the employee must file a formal administrative complaint

within 15 days after receiving a notice of right to file a discrimination
complaint from the counselor;

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Third, the employee must either appeal the agency’s final decision
to the EEOC or file a civil action in federal district court within 90 days of
receiving the final action, or if no final action has been taken, after 180
days from the filing of the initial complaint.
See 29 C.F.R.

§

1614.105-1614. 109, 1614.401, 1614.407(a), (b); see also

Winder v. Postmaster Gen., 528 F. App’x 253, 255 (3d Cir. 2013); Dixon a Sec’y
U.S. Dep’t of Veteran Affairs, 607 F. App’x, 154 (3d Cir. 2015).

B. Failure to Exhaust Claims 1 and 3
1. Claim 1 (the 2014 appointment)
A claimant who does not appeal the agency’s decision within the EEOC
must file a civil action in federal district court within 90 days of receiving the
final action. See Section lI.A, supra; see also Jayhee Cho a Elaine Chao, Civ.
No. 16-2793, 2018 WL 1087499 at *3 (D.N.J. Feb. 28, 2018). That 90-day
period acts as a statute of limitations, and a suit not filed within that period is
subject to dismissal. Griffin a Dep’t of Human Servs., No. CV1814697FLWLHO,
2019 WL 3369783, at 5 (D.N.J. July 26, 2019) (citing Seitzinger a Reading
Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999); Rockmore a Harrisburg
Prop. Serv., 501 F. App’x 161, 164 (3d Cir. 2012)).
In 2014, AlA Miller and two other persons responded to a posted and
reposted vacancy, the position of HOCAW. (AC 9 5, 7) Judge Miller, who is
African-American, did not get the job; AlA Louis Catanese, who is racially
Caucasian, did. (AC

¶(

8—10)

Judge Miller brought Claim 1 before the EEOC. It is undisputed that he
initiated contact with an EEO counsel, as required, and thereafter filed a
formal complaint. Following discovery, SSA moved for and was granted
summary judgment on September 27, 2017. (Pt Dec. Ex. 2; Crawf. Deci. Ex.
5) The EEOC issued its final decision on October 13, 2017. (CrawL Deci. Ex. 6)
Judge Miller did not appeal that decision within the EEOC. (P-L Decl. ¶ 5)
The 90-day deadline to file suit in federal court, then, began running on
October 13, 2017, and expired on January 11, 2018. This action was filed over

three months later, on April 19, 2018, well beyond the deadline. Claim 1, then,
is barred.
The plaintiff does not really contend othenvise. In his responding brief,
AL] Miller suggests that SSA’s motion is one to “strike” the paragraphs of the
complaint containing the factual allegations supporting Claim 1. He argues
that he is “entitled to lay out this factual history between the parties.” (P1. Brf.
1) These facts, he says, are properly considered “as background evidence in
support of a timely claim.” Id. 3 (citing National Railroad Passenger Corp. u.

Morgan, 536 U.S. 101, 113 (2002)). This is not a motion to strike, or a motion
in limine. It is a motion to dismiss Claim 1 for failure to state a claim upon

which relief may be granted. Because AL] Miller neither filed an appeal within
the EEOC nor filed a timely district court action, Claim 1 must be dismissed as
a basis for relief. Whether the facts surrounding Claim 1 would nevertheless be
admissible in evidence in support of some other claim is a separate matter
which I do not decide.
2. Claim 2 (the 2016 temporary-position termination)
SSA does not seem to dispute that AL] Miller exhausted his
administrative remedies as to Claim 2, based on the termination of his
temporanr position as acting HOCAW in 2016, and that this district court
action was timely filed within 90 days of final agency action on that claim.
In June 2016, AL] Catanese left the position of hearing office chief
administrative law judge. At that time, AL] Miller was appointed to the position
on an “acting” basis for three months, and extended for another three months.
(AC

¶f

13—16) On December 19, 2016, SSA notified him that his assignment as

acting HOCAW would be concluding. (AC

¶

21)

On January 10, 2017, Judge Miller initiated a second EEO proceeding by
first requesting counseling and then filing a formal complaint. He alleged that
he was terminated from the acting position in retaliation for his having filed the
first EEO complaint. (P-L Decl. Ex. 7)

6

On January 15, 2018, SSA issued its final decision on this second
complaint, finding that SSA did not discriminate or retaliate when it ended AL]
Miller’s temporary position as acting HOCAW. (P-L Dccl. Ex. 9)

Again, it was on April 19, 2018, that AL] Miller filed his pro se complaint
in this district court action. That filing, though not timely as to Claim 1, is
conceded to be timely as to Claim 2.
3. Claim 3 (the 2017 appointment)
On July 27, 2017, SSA posted another vacancy for the position of

hearing office chief judge. (AC
who did, AU

1 23)

AL] Miller did not get the job; the person

Gina Pesari, is racially Caucasian. (AC

¶ 24—26)

Judge Miller again initiated EEO proceedings by seeking counseling on
February 7, 2018. On March 9, 2018, the counselor sent him a Notice of Right
to File a Formal EEO Complaint. (P-L Dec. Ex. 10) AL] Miller did not follow up
with a formal EEO complaint relating to Claim 3, within the 15-day deadline or
at any time. (Id.

¶ 11)

The assertion of Claim 3 in this action, then, was not preceded by a
separate EEO complaint or final decision at all.
AU Miller responds that exhaustion was not required as to Claim 3,

essentially because it can piggy-back on Claim 2. For new acts of
discrimination, he argues, the claimant is not required to return to the EEOC
and restart the process. In support, he cites old Third Circuit case law, e.g.,
Anjelino v. New York Times Co., 200 F.3d 73, 93—95 (3d Cir. 1999), (reversing
finding of non-exhaustion based on distinction between EEOC complaint
alleging “abusive atmosphere” and district court action alleging hostile work
environment sexual harassment was reasonably within the scope of the EEOC
The relevant 90-day deadline runs from “receipt of the final action.” 29 C.F.R. §
1614.407. From January 15, 2018 to April 19, 2018 is a period of 94 days. The
Amended Complaint rather vaguely alleges that AL] Miller received the final decision
“the following week” and that he “timely” filed his pro se Complaint “on or about April
18, 2018.” (AC ¶ 5) He does not say exactly when in “the following week” he received
the decision (although, to be fair, January 15 was a Monday, so he may have meant to
imply a lapse of at least seven days). The complaint was actually filed on April 19, not
April 18, 2018.
7

charge). Such cases, he argues, were not affected by the subsequent holding in
National Railroad Passenger Corp. u. Morgan, 536 U.S. 101, 113 (2002), which
does not address the question of “whether a previously filed EEOC complaint
must be amended to encompass subsequent acts susceptible to judicial
review.” (P1. Brf. 4 (citing Rivera v. Puerto Rico Aqueduct Sewers Auth., 331 F.3d
183, 189 (1st Cir. 2003)). Thus, he says, the issue is merely whether such
conduct would have reasonably fallen within the scope of the EEOC
investigation; if so, it should be considered exhausted. Thus, the argument
runs, Claim 3, involving the 2017 appointment, because it is reasonably
related to Claim 2, may be added to this action without having gone through a
separate process of exhaustion of administrative remedies.
Not in this case, says the SSA. Primarily, the procedural issue involves
the distinction between an ongoing hostile work environment claim (not alleged
here) and allegations of discrete discriminatory employment actions:
This issue was resolved by the Supreme Court in National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153
L.Ed.2d 106 (2002). Morgan established a bright-line distinction
between discrete acts, which are individually actionable, and acts
which are not individually actionable but may be aggregated to
make out a hostile work environment claim. The former must be
raised within the applicable limitations period or they will not
support a lawsuit. Id. at 113, 122 5. Ct. 2061 (“[Djiscrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges. Each
discriminatory act starts a new clock for filing charges alleging that
act.”). The latter can occur at any time so long as they are linked in
a pattern of actions which continues into the applicable limitations
period. Id. at 105, 122 5. Ct. 2061 (“[Cjonsideration of the entire
scope of a hostile work environment claim, including behavior
alleged outside the statutory time period, is permissible for
purposes of assessing liability, so long as any act contributing to
that hostile environment takes place within the statutory time
period.”).
O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006).

8

AU Miller’s claims are discrete, well-defined employment actions—the

allegedly discriminatory selection of someone else for a particular posted job
vacancy in 2014 and 2017, and the termination of a temporary appointment in
2016. Particular discriminatory demotions or failures to promote, however—
like the ones alleged here—constitute discrete, individually-actionable claims.
See Morgan, 536 U.S. at 114, 122 S. Ct. 2061 (failure to promote is discrete act
that constitutes separate actionable unlawful employment practice). Each
discrete claim must be brought within the applicable limitations period. See
also Griffin, 2019 WL 3369783, at *6.
I underline, moreover, that lumping multiple, discrete actions together in
a single count in a district court complaint—as plaintiff has done here—does
not relieve a plaintiff of the obligation to exhaust each one. See McCann u.
Astnze, 293 P. App’x 848 (3d Cir. 2008) (two-count complaint alleging
discriminatory denial of thirteen applications for promotion; rejecting
“continuing violation” theory and dismissing all for failure to exhaust except for
the two that were presented to the EEOC).
In arguing that Claim 2 and Claim 3 constitute a linked, ongoing
violation, AU Miller relies heavily on “hostile environment” cases. Those cases,
however, involve an ongoing series of events actionable as such. The standards
announced in those hostile-environment cases do not apply to these discrete,
individually-actionable events.
To the extent they may pertain to discrete acts, the cases on which the
plaintiff relies are nevertheless distinguishable, as Judge Buckwalter has
pointed out:
The cases cited by Plaintiff in opposition to Defendant’s Motion are
distinguishable as they involved retaliation claims that, while not
specifically mentioned in the original administrative charge,
occurred prior to or during the administrative agency’s
investigation and, thus, could be said to be fairly within the scope
of that investigation. See Waiters v. Parson, 729 F.2d 233, 237—38
(3d Cir. 1984) (declining to find suit barred for failure to exhaust
administration remedies because although the specific retaliation
claim was not raised in the formal EEOC complaint, the EEOC
9

district director concluded that a pattern of events that occurred
after the plaintiff’s filing of an informal complaint a year earlier
demonstrated retaliation); Howze u. Jones & Laughlin Steel Corp.,
750 F.2d 1208, 1212 (3d Cir. 1984) (finding new retaliation claim
could fairly be considered an explanation of the original failure to
promote charge where the events occurred prior to conclusion of
EEOC investigation and the defendant did not argue that the
retaliation charge was beyond the scope of the original
discrimination claim or that a reasonable investigation by the
EEOC would not have encompassed that retaliation charge)
.

*7 (E.D. Pa.
Flora u. Wyndcroft Sch., No. CIV.A. 12-6455, 2013 WL 664194, at
Feb. 25, 2013).
Take, for example, Anjelino u. New York Times Co., 200 F.3d 73, 93—95
(3d Cir. 1999), on which the plaintiff relies. Anjelino did no more than reverse a
finding of non-exhaustion based on a too-narrow interpretation of the claim the
employee brought before the EEOC. That plaintiffs rejected EEOC complaint
alleged an “abusive atmosphere”; the subsequent district court complaint
alleged hostile work environment sexual harassment. Close enough, said the
Third Circuit; such allegations were reasonably within the scope of the EEOC
complaint charge that the plaintiff brought.
The issue in those cases was whether an issue that could have been
addressed in the EEOC’s ongoing investigation, even if it was not addressed,
should nevertheless be regarded as exhausted. To put it another way, an issue
will not be barred if the EEOC was at fault for conducting too narrow an
investigation.
Such holdings do not assist ALl Miller here. On this record, I cannot find
that Claim 3 was timely brought to the EEOC’s attention during the Claim 2
investigation or was reasonably within the scope of the Claim 2 investigation.
The chronology’ makes this clear:
12/19/2016

1/10/20 17

-

-

SSA notifies ALl Miller his temporary assignment is
concluding (the subject of Claim 2)
ALl Miller initiates EEO proceeding on Claim 2 by
requesting counseling, followed by formal complaint
10

7/19/20 17

-

9/15/20 17

12/5/2017
1/15/2018
2/7/20 18

-

-

-

-

SSA completes investigation of Claim 2 (P-L Deci. Ex. 9 p.
2)
SSA sends completed Report of Investigation of Claim 2 to
AIJ Miller and his representative (P-L Dccl. Ex. 9 p. 2)
Claim 3 position of HOCAUJ awarded to other candidate
SSA issues final decision on Claim 2
AW Miller initially brings Claim 3 to EEOC by requesting
counseling (See P-L Decl. Lx. 10)

3/9/ 20 18

Counselor sends Notice of Final Interview and Right to
File a Formal LEO Complaint re: Claim 3. No EEO
complaint is filed. (P-L Decl. Lx. 10)

4/19/20 18

AW Miller files initial pro se district court complaint,
containing Claims 1, 2, and 3

On this record, I cannot conclude that Claim S was fairly placed before the
EEOC for its investigation and consideration as part of the Claim 2 process.
Claim 3, then, is dismissed for failure to exhaust administrative
remedies.
Ill.

Conclusion

For the reasons stated above, SSA’s motion to dismiss the Amended
Complaint insofar as it asserts Claims 1 and 3 is GRANTED. Since amendment
of the complaint as to these unexhausted claims would be futile, this dismissal
is entered with prejudice. Only Claim 2 remains.
An appropriate order is filed together with this Opinion.
Dated: September 6, 2019

Kevin McNulty
United States District Judge

11