ADEA claims dismissed for lack of exhaustion

Where a government employee is required to seek equal employment opportunity, or EEO, counseling within 45 days of the discriminatory conduct, but the record showed a woman did not do so, her claims under the Age Discrimination in Employment Act, or ADEA, were dismissed.

Background

Joyce Sagna brings this lawsuit under the Age Discrimination in Employment Act, or ADEA, and the Federal Tort Claims Act, or FTCA. Defendants seek entry of summary judgment or, alternatively, the defendants seek dismissal for failure to state a claim.

Exhaustion

“Under [the ADEA], it is well-settled that a claimant must exhaust [her] administrative remedies before pursuing a civil action in federal court; moreover, failure to do so will result in the dismissal of his complaint.”

For plaintiff’s discrete act claims, here age harassment and ADEA retaliation claims, she needed to seek EEO counseling within 45 days of Feb. 1, 2021, i.e., March 18, 2021. Starting with either defendants’ position that plaintiff did not contact an EEOC counselor until October 2021 or plaintiff’s contention that she tried to seek EEOC counseling as early as April 16, 2021, plaintiff’s claim is time barred. Plaintiff’s ADEA hostile work environment claim is likewise time barred because the last act comprising her claim occurred on Feb. 1, 2021.

Equitable tolling

Plaintiff contends that the applicable time deadlines should be extended under the doctrine of equitable tolling. Equitable tolling “has long been considered an extraordinary remedy in this circuit, and litigants face a considerable burden to demonstrate that it applies.” Here, while Plaintiff argues that she was provided conflicting information about which EEOC office she needed to contact, she comes far short of providing the type of detail the court requires before tolling the limitations period.

It appears that plaintiff is essentially contending that she thought she had already commenced the EEO process. In that regard, plaintiff sent a Jan. 7, 2021, email complaining of harassment by Shernell Carter to two of her other alleged harassers. “[T]he ‘EEOC has consistently held that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process.’”

Even assuming that Wallace and/or Pryor were “logically connected with the EEO process,” a proposition for which plaintiff proffers no evidence, the email itself does not exhibit “an intent to begin the EEO process.” The email does not reference the “EEO record” or the EEO “process,” and as such does not exhibit the required intent.

Additionally, plaintiff does not allege, nor provide any evidence, that she was told that her January 2021 complaint was still under review or that the complaint satisfied her procedural requirements. Therefore, even if April 16, 2021, served as relevant date here, which it does not, plaintiff would not be entitled to equitable tolling.

More importantly, plaintiff fails to offer any substantive explanation for why she waited another six months after her April 16 contact before successfully initiating contact with an EEO counselor. Plaintiff only vaguely contends, with no supporting evidence, that she was “[s]tuck in [a] miscommunication circle” and that when “she was finally able to receive the proper form to file her charges, she did just that, in October 2021.” She offers no evidence of trickery or subterfuge on behalf of the defendants. And plaintiff received several trainings and was otherwise on notice regarding the relevant procedures and deadlines for filing commencing an EEO complaint, thereby undermining her equitable tolling claim.

FTCA

In Count Three, plaintiff alleges tortious interference with employment contract and in Count Four, alleges intentional infliction of emotional distress. Under the FTCA, however, claimants must exhaust their administrative remedies with the appropriate federal agency before bringing suit in federal court. This requirement is jurisdictional. Plaintiff, offering no rebuttal to defendants’ FTCA arguments, did not present her tort claims to the State Department. Accordingly, her FTCA claims are dismissed for lack of subject matter jurisdiction.

Defendants’ partial motion to dismiss granted. Defendants’ partial motion for summary judgment granted.

Sagna v. Blinken, Case No. 1:22-cv-471, Nov. 7, 2022. EDVA at Alexandria (Trenga). VLW 022-3-502. 10 pp.