MILLER v. SOCIAL SECURITY ADMINISTRATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SS 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 (“ALJ”) in the

Social Security Administration (“SSA”). 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

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 plaintiff's obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Ati. 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

plaintiff's 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’l 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 v. Igbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]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.” Jn re Rockefeller

Ctr. Props., Ine. Sec. 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 v.

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. Bd. of Soc. Servs., No. 16-CV-4712 (BRM), 2017 WL 2829618, at

*5 (D.N.J. June 30, 2017); Cummings v. Princeton Unwv., No. 15-CV-8587 (FLW),

2016 WL 6434561, at *1-2 (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 Decl. (DE 17-1); Crawf. Decl. (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.? I will therefore

consider certain of the EEO documents here.

II. Discussion

A. The Title VII Exhaustion Requirement

Plaintiff Hilton Miller, an administrative law judge (ALJ) 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 = Defendants’ Brief in support of motion to dismiss (DE 17-1)

Pl. Brf = Plaintiffs Brief in opposition to motion to dismiss (DE 20)

SSA Reply = Defendants’ Reply Brief in support of motion to dismiss (DE 24)

P-L Decl. = Declaration of Reita Pierre-Louis and attached Exhibits (DE 17-2}

Crawl. Decl. = 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 12(b}(6) motion).

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).

“tis a basic tenet of administrative law that a plaintiff must

exhaust all required administrative remedies before bringing a

claim for judicial relief.’” Slingland 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, ‘t]he Supreme Court has

explained that when Title VII remedies are available, they must be

exhausted before a plaintiff may file suit.’” Jd. (quoting Spence v.

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, ‘respect[ ] 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 v. 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;

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 v. 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 II.A, supra; see also Jayhee Cho v. 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 v. Dep’t of Human Servs., No. CV1814697FLWLHG,

2019 WL 3369783, at *5 (D.N.J. July 26, 2019) (citing Seitzinger v. Reading

Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999); Rockmore v. Harrisburg

Prop. Serv., 501 F. App’x 161, 164 (3d Cir. 2012)).

In 2014, ALJ Miller and two other persons responded to a posted and

reposted vacancy, the position of HOCALJ. (AC 4 5, 7) Judge Miller, who is

African-American, did not get the job; ALJ Louis Catanese, who is racially

Caucasian, did. (AC 4] 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. (P-L Dec. Ex. 2; Crawf. Decl. Ex.

5) The EEOC issued its final decision on October 13, 2017. (Crawf. Decl. 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 otherwise. In his responding brief,

ALJ 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.” (Pl. 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. v.

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 ALJ 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 ! do not decide.

2. Claim 2 (the 2016 temporary-position termination)

SSA does not seem to dispute that ALJ Miller exhausted his

administrative remedies as to Claim 2, based on the termination of his

temporary position as acting HOCALJ in 2016, and that this district court

action was timely filed within 90 days of final agency action on that claim.

In June 2016, ALJ Catanese left the position of hearing office chief

administrative law judge. At that time, ALJ Miller was appointed to the position

on an “acting” basis for three months, and extended for another three months.

(AC 44 13-16) On December 19, 2016, SSA notified him that his assignment as

acting HOCALJ 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)

On January 15, 2018, SSA issued its final decision on this second

complaint, finding that SSA did not discriminate or retaliate when it ended ALJ

Miller’s temporary position as acting HOCALJ. (P-L Decl. Ex. 9)

Again, it was on April 19, 2018, that ALJ 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

3. Claim 3 (the 2017 appointment)

On July 27, 2017, SSA posted another vacancy for the position of

hearing office chief judge. (AC J 23) ALJ Miller did not get the job; the person

who did, ALJ Gina Pesari, is racially Caucasian. (AC JJ 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) ALJ 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.

ALJ 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

3 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 ALJ 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.

charge). Such cases, he argues, were not affected by the subsequent holding in

National Railroad Passenger Corp. v. 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.” (Pl. 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 S. Ct. 2061 (“[D]iscrete

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 S. Ct. 2061 (“[C]Jonsideration 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).

ALJ 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 humping 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 v.

Astrue, 293 F. 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, ALJ 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

district director concluded that a pattern of events that occurred

after the plaintiffs filing of an informal complaint a year earlier

demonstrated retaliation); Howze v. 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)....

Flora v. Wyndcroft Sch., No, CIV.A. 12-6455, 2013 WL 664194, at *7 (E.D. Pa.

Feb. 25, 2013).

Take, for example, Anjelino v. 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 plaintiff's 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 ALJ 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 - SSA notifies ALJ Miller his temporary assignment is

concluding (the subject of Claim 2)

1/10/2017 - ALJ Miller initiates EEO proceeding on Claim 2 by

requesting counseling, followed by formal complaint

10

7/19/2017 - SSA completes investigation of Claim 2 (P-L Decl. Ex. 9 p.

2)

9/15/2017 - SSA sends completed Report of Investigation of Claim 2 to

ALJ Miller and his representative (P-L Decl. Ex. 9 p. 2)

12/5/2017 - Claim 3 position of HOCALJ awarded to other candidate

1/15/2018 - SSA issues final decision on Claim 2

2/7/2018 - ALJ Miller initially brings Claim 3 to EEOC by requesting

counseling (See P-L Decl. Ex. 10)

3/9/2018 - Counselor sends Notice of Final Interview and Right to

File a Formal EEO Complaint re: Claim 3. No EEO

complaint is filed. (P-L Decl. Ex. 10)

4/19/2018 - ALJ Miller files initial pro se district court complaint,

containing Claims 1, 2, and 3

On this record, I cannot conclude that Claim 3 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.

III. 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

_ hn (

Kevin McNulty

United States District Judge

11