MCLAUGHLIN v. BARR

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LORI D. McLAUGHLIN, )

)

Plaintiff, )

)

v. ) 1:20-CV-230

)

WILLIAM B. BARR, In His Official )

Capacity as United States Attorney )

General, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

The plaintiff, Lori McLaughlin, brought this suit alleging that her supervisors at

the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and others in the

Department of Justice discriminated against her based on her race, age, and sex and

retaliated against her for bringing previous discrimination claims, all in violation of Title

VII and the ADEA. Because Ms. McLaughlin’s discrimination claims are based on

actions that she did not timely bring to the attention of the Equal Employment Office, her

claims are time-barred, and the defendant’s motion to dismiss will be granted.

Background

For the limited purpose of resolving the motion to dismiss for failure to state a

claim, the Court considers the allegations in the complaint as true. As to dates when

administrative claims were made in connection with the defendant’s motion to dismiss

based on exhaustion, the Court accepts the allegations of the complaint, as supplemented

by attachments to Ms. McLaughlin’s complaints in this case and her previous cases,

along with other documents related to timing that appear to be undisputed.1

Ms. McLaughlin, an African-American woman, has worked for ATF since 1989.

Doc. 1 at ¶¶ 3, 7. At all times relevant here, she was assigned to the Charlotte Field

Division of ATF. Id. at ¶ 3. Ms. McLaughlin has filed multiple administrative charges

against the ATF, at least two previous lawsuits, and an EEO-related whistleblower

appeal. See id. at ¶ 75; McLaughlin v. MSPB, No. 19-1997 (Fed. Cir. 2019); McLaughlin

v. Barr, No. 1:19-cv-318, 2020 WL 869914 (M.D.N.C. Feb. 21, 2019); McLaughlin v.

Sessions, No. 1:17-cv-759-CCE-JEP (M.D.N.C. 2017); McLaughlin v. Holder, 828 F.

Supp. 2d 230 (D.D.C. 2011); McLaughlin v. Mukasey, No. 1:08-cv-1256 (D.D.C. 2008).

When she filed her 2017 lawsuit in this district, No. 1:17-cv-759-CCE-JEP, Ms.

McLaughlin was a criminal investigator in the Greensboro ATF office. Doc. 1 at ¶¶ 7, 9–

10. On or about October 16, 2017, shortly after filing the lawsuit, Ms. McLaughlin was

reassigned to the Crime Gun Intelligence Center in Charlotte. Id. at ¶¶ 8–10; Doc. 12-7

at 36 (Plaintiff’s EEO Declaration and Exhibits). Ms. McLaughlin believed the

reassignment was temporary and that she would return to her criminal investigator

position in Greensboro at the conclusion of the suit. Doc. 1 at ¶¶ 10, 14.

1 Courts generally do not consider matters outside the pleadings when ruling on a motion to

dismiss. Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).

A court may, however, consider documents outside the pleadings without converting a motion to

dismiss into one for summary judgment if those documents are “integral to and explicitly relied

on in the complaint” and their authenticity is unchallenged. Copeland v. Bieber, 789 F.3d 484,

490 (4th Cir. 2015).

But when the suit concluded in June 2018, ATF management instead attempted to

reassign Ms. McLaughlin to the National Center for Explosives Training and Research

(NCETR). Id. at ¶¶ 14–15. On June 29, 2018, Ms. McLaughlin asked her supervisor,

Wayne Dixie, why she was being reassigned, and he told her that the U.S. Attorney’s

Office “would not prosecute [her] cases.” Doc. 12-7 at 37. Soon thereafter, ATF

rescinded the reassignment. Doc. 1 at ¶ 15. In December 2018, Agent Dixie stated in a

sworn declaration filed with the Merit Systems Protection Board that all three North

Carolina U. S. Attorneys advised him they would not prosecute any criminal

investigations conducted by Ms. McLaughlin. Id. at ¶ 20. Ms. McLaughlin remains at

the Crime Gun Intelligence Center in Charlotte. Id. at ¶ 14; Doc. 12-6.

As is relevant here, Ms. McLaughlin contacted an EEO counselor on January 8,

2019. Doc. 12-1 at 2. She raised several matters with this counselor, including a

complaint that the three North Carolina United States Attorneys were refusing to

prosecute cases investigated by her. Id. at 2–3.

She filed a formal administrative complaint on March 26, 2019, alleging three

adverse actions. Id. at 2. Specifically, Ms. McLaughlin complained that (1) the three

United States Attorneys’ offices in North Carolina refused to prosecute any of her

criminal investigations, without notice;2 (2) she was removed from her field position

2 Ms. McLaughlin refers to this adverse action in her complaint as placement into “giglio”

status, presumably a reference to Giglio v. United States, 405 U.S. 150, 155 (1972) (holding

impeachment material of a government witness must be turned over to the defense). See

generally Doc. 1.

without any official notification; and (3) she was transferred to Charlotte based on

complaints filed against her by co-workers in the Greensboro office, again without notice.

Id. at 3. Her administrative complaint was ultimately denied, and in this pending lawsuit,

Ms. McLaughlin alleges that these three adverse actions were the result of race, sex, and

age discrimination, as well as retaliation for an earlier lawsuit against her employer, all in

violation of Title VII, 42 U.S.C. § 2000e et seq., and the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq. See Doc. 1 at ¶¶ 51–83.

Ms. McLaughlin alleges that ATF management and the United States Attorneys

“conspired” to discriminate against her, id. at ¶¶ 53, 62, 69, 79, but conspiracy is not an

element of a Title VII or ADEA claim nor is there a separate cause of action for

conspiracy to violate those statutes. Because she proceeds pro se, Haines v. Kerner, 404

U.S. 519, 520 (1972), the Court liberally construes her complaint to allege violations of

Title VII and the ADEA, not independent conspiracy claims.

Legal Framework

Federal employees bringing discrimination claims must exhaust administrative

remedies within their federal agency before filing suit in federal court. See 29 C.F.R. §§

1614.105–1614.110; Stewart v. Iancu, 912 F.3d 693, 699 (4th Cir. 2019). The applicable

regulations require federal employees to consult an Equal Employment Opportunity

counselor within 45 days of the alleged discriminatory acts. 29 C.F.R. § 1614.105(a)(1).

Absent grounds for equitable tolling not asserted here, see Lorenzo v. Rumsfeld, 456 F.

Supp. 2d 731, 738 (E.D. Va. 2006), failure to do so is grounds for dismissing the

employee’s discrimination claim or disregarding acts committed before that period. At

the end of the counseling period, the employee has 15 days to file a discrimination charge

with the agency. 29 C.F.R. §§ 1614.105(d–e), 1614.106(b). If a plaintiff has not timely

exhausted her administrative remedies, her complaint is subject to dismissal when failure

to exhaust is raised by the employer. See Fort Bend Cnty. v. Davis, 139 S. Ct. 1843,

1851–52 (2019); Laber v. Harvey, 438 F.3d 404, 428–29 & n.25 (4th Cir. 2006).

A Title VII federal lawsuit may include “any kind of discrimination like or related

to allegations contained in the charge and growing out of such allegations during the

pendency of the case before the agency.” Stewart, 912 F.3d at 705. The same is true of

age discrimination claims. See, e.g., Smith v. Potomac Elec. Power Co., No. TDC-19-

1764, 2020 WL 1904707, at *6 (D. Md. Apr. 17, 2020) (allowing an ADEA hostile

workplace claim to proceed from an EEO charge that alleged age discrimination). But

the Court may not consider wholly new, unrelated claims. See Sydnor v. Fairfax Cnty.,

681 F.3d 591, 593–94 (4th Cir. 2012) (noting that the “scope of the plaintiff’s right to file

a federal lawsuit is determined by the charge’s contents.”).

Analysis

As is relevant here, Ms. McLaughlin made first contact with an EEO counselor on

January 8, 2019. Doc. 12-1 at 2. As a result of the applicable 45-day rule, any claim

based on conduct that predates November 25, 2018, is untimely.3 29 C.F.R. §

3 Ms. McLaughlin does not specifically assert a hostile work environment claim in her

complaint, but she makes a passing assertion that she “was also unlawfully harassed constituting

a hostile work environment.” Doc. 1 at ¶ 1. To the extent Ms. McLaughlin pursues a claim of

hostile work environment, that claim is dismissed for failure to plead sufficient supporting facts.

1614.105(a)(1); Greenblatt v. Nat'l Pork Bd., No. CV ELH-15-00054, 2015 WL

6549578, at *7 (D. Md. Oct. 27, 2015).

Ms. McLaughlin does not specify dates for the alleged adverse actions in either the

initial EEO charge or the complaint, but the dates are apparent from exhibits, and she

does not dispute them in her brief. As the EEOC held in dismissing her charges for

untimeliness, Doc. 12-4 at 3, the record shows that all of the alleged adverse actions

occurred before November 25, 2018.

Ms. McLaughlin alleges she was removed from her field position and transferred

to Charlotte in violation of Title VII and the ADEA. But she admits that the agency

reassigned her from field criminal investigator on or about October 16, 2017, Doc. 1 at ¶¶

9–10; Doc. 12-6; Doc. 12-7 at 36, over a year before she sought EEO assistance. She

also admits that she found out in June 2018 that she would not be reassigned to the

Greensboro office and was told soon thereafter that she would remain at the Crime Gun

Intelligence Center in Charlotte. See Doc. 1 at ¶ 14; Doc 12-7 at 37. The decision not to

reassign Ms. McLaughlin to her field investigator position in the Greensboro office was

made months before November 25, 2018. Her claims based on this conduct are untimely.

Ms. McLaughlin’s remaining claim relates to the allegation that her ATF

supervisors and two U.S. Attorneys discriminated against her by “conspir[ing] with one

another to place [her] into a ‘giglio’ status.” Doc. 1 at ¶¶ 53, 62, 69, 79; Doc. 12-1 at 3.4

4 Ms. McLaughlin alleged in her EEO charge that all three North Carolina U.S. Attorneys

discriminated against her. In her complaint, she is only specific as to two of the three

prosecutors, though she does make references to the third in her factual allegations.

Ms. McLaughlin admits that on June 29, 2018, Agent Dixie informed her that “the USAO

would not prosecute [her] cases.” Doc. 12-7 at 37. But she did not raise this issue with

the EEO office for over five months. This claim is also untimely.

Ms. McLaughlin contends that she did not become aware of the decisions by the

U.S. Attorneys until December 18, 2018, when she read Agent Dixie’s declaration

submitted in the MSPB proceeding. Doc. 1 at ¶ 20; Doc. 17 at 15–16. As previously

noted, this is inconsistent with her assertion that she was told in June that the U.S.

Attorneys would not prosecute her cases. Thus, on the facts alleged, the 45-day limit was

triggered no later than her June 2018 conversation with Agent Dixie.5 Ms. McLaughlin

makes no argument that her claims are subject to equitable tolling, see generally Doc. 17,

and alleges no facts to support such tolling in her complaint. See generally Doc. 1.

Finally, and in any event, it is not plausible to claim that U.S. Attorneys in

different districts each decided not to prosecute her cases because of age, race, and sex

5 The Fourth Circuit has held in an unpublished opinion that the time limit in §1614.105(a)(1)

does not begin when a complainant first learns of the alleged discrimination behind an action, but

“within forty-five days of the effective date of the personnel action” itself. Young v. Barnhart,

52 F. App’x 191, 193 n.4 (4th Cir. 2002) (unpublished) (relying on Hamilton v. 1st Source Bank,

928 F.2d 86, 87–88 (4th Cir. 1990) (en banc)); see also D’Antonio v. Napolitano, No. 1:11-cv-

1295 (AJT/TRJ), 2012 WL 1580091, at *5 (E.D. Va. May 4, 2012) (explaining Young). For

non-personnel actions, the EEOC has adopted a “reasonable suspicion standard” as opposed to a

“supportive facts” standard to determine when the 45-day time limit is triggered. See Howard v.

Dep’t of the Navy, EEOC Request No. 05970852, 1999 WL 91430, at *2 (Feb. 11, 1999). Thus,

the time limitation is triggered when a complainant reasonably suspects discrimination, not

necessarily when all the facts that support a charge of discrimination become apparent. See

McLoughlin v. Dep’t of the Treasury, EEOC Request No. 05A01093, 2003 WL 2010850, at *2

(Apr. 24, 2003); see also Barkley v. Potter, No. 06-C-0002, 2006 WL 1389113, at *2 (E.D. Wis.

May 15, 2006). Under either standard, Ms. McLaughlin’s claim based on a decision made

before June 29, 2018 and communicated to her that day is time-barred.

discrimination and not because of other appropriate reasons obvious from the record.

Certainly, “a well-pleaded complaint may proceed even if it strikes a savvy judge that

actual proof of those facts is improbable,” or “that a recovery is very remote and

unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). But courts are not

required to put aside reason and common sense in evaluating whether a complaint states a

plausible claim for relief; in fact, a court should “draw on its experience and common

sense” in making a context-specific evaluation of whether a claim is merely conceivable

or rises to the level of plausibility. Ashcroft v. Iqbal, 556 U.S. 662, 663–64 (2009).

In the complaint, as well as in her previous paper writings, Ms. McLaughlin claims

that the ATF and the Department of Justice are full of people at all levels who are and

have been for many years corrupt, bigoted, or incompetent, and who have routinely

disregarded and continue to disregard the rules. 6 Of course prosecutors would have

doubts about her judgment as an investigator, not to mention the Pandora’s box that could

result should she testify. See id. at ¶¶ 22, 24. She does not allege discriminatory remarks

6 See, e.g., Doc 1 at ¶ 5 (alleging the EEO investigator failed to investigate; that the ATF

“maliciously” terminated the EEO investigation in order to shield management from liability;

and that no one from “DOJ/EEO, EEOC, OSC, or GAO” acted when she reported the U.S.

Attorney’s failure to cooperate); at ¶ 8 (alleging past “unethical conduct by DOJ attorneys” and

admitting that she filed a court motion accusing DOJ attorneys of misrepresenting facts); at ¶ 10

(accusing her supervisor of making false and malicious statements in order to remove her); at ¶

12 (alleging the Acting U.S. Attorney in one district failed to take action to remedy false conflict

of interest accusations); at ¶ 29 (accusing a U.S. Attorney of basing decisions on “several

unfair/bias misconduct investigations conducted by ATF”); at ¶ 36 (alleging an IAD investigator

maliciously terminated a tape recording device during an interview with her); at ¶ 45 (alleging

corruption at ATF and by OPRSO personnel); Doc. 12-1 at 4 (requesting prompt attention to her

EEO complaint “[g]iven the ongoing corruption inside [the] EEO Office”). While these citations

are only to her current complaint, she made similar allegations and claims in the complaints and

briefs she filed in her previous lawsuits, of which the Court takes judicial notice.

were made to her or in her presence or any other facts that would directly support a

discrimination claim, and the record establishes legitimate, non-discriminatory reasons

for prosecutorial decisions that cannot plausibly be attributed to discriminatory or

retaliatory motives. Ms. McLaughlin’s claim that federal prosecutors discriminated

against her based on her age, sex, and race is not plausible; dismissal of this claim is

appropriate even if it were timely.

Ms. McLaughlin includes many other allegations of adverse actions occurring well

before November 2018, including many details about events in 2011, 2013, and 2015.

Doc. 1 at ¶¶ 31–45. To the extent she asserts discrimination claims based on these distant

events, those claims are time-barred.

Ms. McLaughlin also alleges that she was suspended for eight days in 2019 in

retaliation for “comparing the U.S. Attorneys to criminals” for placing her “in a ‘giglio’

status,” id. at ¶¶ 47–50, but this conduct was not mentioned in her agency complaint

presented to the EEO counselor in January 2019, was not investigated by the agency, and

involved a different ATF manager. Doc. 12-1 at 3. As this claim has not gone through

the necessary administrative process, it is barred for failure to exhaust administrative

remedies.

Finally, to the extent she contends that the U.S. Attorneys refused to cooperate

with the administrative process, that she did not receive notice of the various personnel

decisions, or that the ATF terminated an EEO investigation without just cause, see, e.g.,

Doc. 1 at ¶ 5, those are not adverse employment actions within the scope of Title VII or

the ADEA. Nielsen v. Hagel, 666 F. App’x 225, 230–31 (4th Cir. 2016) (unpublished)

(holding that allegations of procedural deficiencies in the administrative process are not

cognizable as “standalone” claims under Title VII); accord Wriglesworth v. Speer, No.

5:17-CV-252-D, 2018 WL 1950432, at *3 (E.D.N.C. Apr. 25, 2018).

In her brief, Ms. McLaughlin contends that her constitutional rights were violated

in various ways. See Doc. 17 at 2. But these allegations are not in the complaint, and a

complaint cannot be amended in a brief. S$. Walk at Broadlands Homeowner’s Ass’n, Inc.

v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013).

Conclusion

The complaint and referenced exhibits establish that Ms. McLaughlin did not

timely raise her current discrimination claims with the EEO office. Her claims are

untimely and will be dismissed. To the extent she raises other claims outside the scope of

the relevant EEO charge, those claims will be dismissed for failure to exhaust her

administrative remedies.

It is ORDERED that the defendant’s motion to dismiss, Doc. 11, is GRANTED.

Judgment forthcoming as time permits.

This the 23rd day of November, 2020.

UNITED STATES DIS JUDGE

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