Miller v. Hersman

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2009 Decided February 5, 2010

No. 08-5494

RICHARD MILLER,

APPELLANT

v.

DEBORAH A. P. HERSMAN, CHAIRMAN,

NATIONAL TRANSPORTATION SAFETY BOARD,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cv-01071-GK)

David A. Young argued the cause for the appellant. Carl S.

Nadler was on brief.

Brian P. Hudak, Assistant United States Attorney, argued

the cause for the appellee. R. Craig Lawrence, Assistant United

States Attorney, was on brief.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Richard

Miller, a former employee of the National Transportation Safety

Board (NTSB or Board), appeals the district court’s judgment in

his employment discrimination suit. Miller v. Rosenker, 578 F.

2

Supp. 2d 107 (D.D.C. 2008). Miller challenges the district

court’s decision insofar as it (1) granted summary judgment on

Count I and Count II alleging discriminatory non-promotion on

the ground that he failed to timely seek equal opportunity

employment counseling from the Board and (2) dismissed Count

III alleging discriminatory treatment on the ground Miller

conceded arguments the Board raised in support of dismissal.

Because genuine issues of material fact exist regarding Count I

and Count II, we reverse the summary judgment on each. We

also reverse the court’s dismissal of Count III because Miller did

not, as the district court concluded, concede arguments raised by

the NTSB.

I.

Miller, who was born in 1949, began working at the NTSB

in June 1999 as a financial management specialist in the NTSB’s

Office of Chief Financial Officer in Washington, D.C. His

employment was terminated on June 30, 2006.

Miller initially filed a discrimination complaint with the

NTSB’s Equal Employment Opportunity (EEO) office on March

13, 2002, alleging the NTSB discriminated against him by (1)

failing to select him for five different positions, (2) failing to

provide a position description detailing the duties of his current

position, (3) assigning him a lower performance evaluation than

warranted and (4) denying him the use of office equipment and

resources. The Board dismissed the complaint and the Equal

Employment Opportunity Commission (EEOC) affirmed the

dismissal in March 2006. Meanwhile, Miller filed a second EEO

complaint on January 21, 2006, alleging additional instances of

discrimination, retaliation and harassment.

Miller filed this action on June 9, 2006, asserting a single

discrimination count based on his non-selection for the position

of Budget Officer. When the NTSB failed to act on his second

EEO complaint within 180 days, Miller filed an amended

3

complaint in the district court, alleging eight counts of sex and

age discrimination or retaliation, including the three counts

(Counts I, II and III) which are at issue in this appeal.

Count I alleges discriminatory non-selection for the Budget

Officer position, which was awarded to a 50-year old female,

Sylvia Livingston, on October 23, 2001. According to the

complaint, Miller did not learn the selectee was a female until

sometime in December 2001.

Count II alleges discriminatory non-selection for one of two

“Special Assistant” vacancies, which were announced in early

2001. The two selectees, Barbara Czech and David Mayer (both

then under 40 years of age), were initially appointed to fill the

slots temporarily—from about March 3 to May 5, 2001—and

were appointed permanently on April 30, 2001. The complaint

alleges Miller first learned of their temporary selection on April

10, 2001 and of their permanent selection in May 2001.

Count III alleges the NTSB discriminatorily torpedoed his

performance appraisal by failing to provide him in advance with

an accurate job description (which “allowed [the appraiser] to

evaluate his performance arbitrarily and discriminatorily,” Am.

Compl. ¶ 860), lowered his performance appraisal in retaliation

for his “EEO activity,” id. ¶ 85, transferred his duties to other

employees and created a hostile work environment. See id. ¶¶

78-87.

On February 27, 2007, the NTSB filed a Motion to Dismiss

or, in the Alternative, for Summary Judgment (Motion to

Dismiss), supported by a statement of facts not in dispute, a

supporting memorandum and exhibits. See Motion to Dismiss,

Miller v. Rosenker, C.A. No. 06-1071 (Feb. 27, 2007). Miller

filed an Opposition to the Motion to Dismiss (Opposition), along

with his own supporting memorandum and exhibits. See

Opposition, Miller v. Rosenker, C.A. No. 06-1071 (Nov. 19,

2007).

4

On September 29, 2008, the district court granted summary

judgment to the NTSB on Counts I and II on the ground that

Miller cited no evidence to dispute material facts established by

the NTSB’s evidence, namely, that the date Miller sought EEO

counseling was more than 45 days after he learned the positions

had been awarded to other individuals, in violation of EEOC

regulation 1614.105(a), 29 C.F.R. § 1614.105(a). Miller, 578 F.

Supp. 2d at 113-14. The court dismissed the remaining six

counts, including Count III, for failure to state a claim,

concluding Miller failed to respond to arguments raised by the

NTSB and thereby conceded them. Id. at 111-12. Miller filed a

timely notice of appeal, challenging only the summary judgment

on Counts I and II and the dismissal of Count III.

II.

We review de novo both a summary judgment and a

dismissal for failure to state a claim. Chambers v. U.S. Dep’t of

Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (citing Islamic Am.

Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)).

“Summary judgment is appropriate ‘if the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.’ ”

Quigley v. Giblin, 569 F.3d 449, 453 (D.C. Cir. 2009) (quoting

Fed. R. Civ. P. 56(c)). In assessing whether a genuine issue

exists, we “view the evidence in the light most favorable to the

nonmoving party.” Id. (citing U.S. Postal Serv. v. Am. Postal

Workers Union, 553 F.3d 686, 692 (D.C. Cir. 2009)). We

address first the two counts alleging discriminatory non-

selection.

A. Counts I and II

In its Motion to Dismiss, the NTSB asserted it was entitled

to summary judgment on both Count I and Count II because

Miller failed to exhaust his administrative remedies in that he did

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not consult an EEO counselor within 45 days of the alleged

discriminatory actions pursuant to EEOC regulation 1614.105.

Regulation 1614.105 requires that an “[a]ggrieved person[] who

believe[s he] ha[s] been discriminated against on the basis of . . .

sex [or] age . . . must consult a Counselor prior to filing a

complaint in order to try to informally resolve the matter” and

“must initiate contact” with the counselor “within 45 days of the

date of the matter alleged to be discriminatory or, in the case of

personnel action, within 45 days of the effective date of the

action.” 29 C.F.R. § 1614.105(a), (a)(1) (2001). Under

subsection (a)(2), however, “the time will be tolled if he ‘did not

know and reasonably should not have [] known that the

discriminatory matter or personnel action occurred.’ ” Stewart

v. Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003) (quoting 29

C.F.R. § 1614.105(a)(2)) (alteration in original). The NTSB has

maintained that the 45-day period began to run for the Special

Assistant positions no later than early May 2001, when Miller

learned the identities of the two selectees, and for the Budget

Officer position as of October 24, 2001, the date he was told he

had not been selected for the post. Thus, the NTSB asserts,

Miller failed to comply with the consultation requirement

because each 45-day period expired before January 2, 2002,

when he first sought counseling from NTSB EEO Director and

Diversity Program Manager Fara Guest. See Decl. of Fara D.

Guest, Motion to Dismiss ex. 1, ¶ 3 (“Richard Miller . . . first

initiated contact with me and expressed the intention to begin the

EEO counseling process no earlier than January 2, 2002.”).1 The

1

Although Guest is not herself a counselor, the EEOC “has

consistently held that a complainant satisfies the criterion of EEO

counselor contact by contacting an 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.” Osuagwu v.

Peake, No. 0120081307, 2008 WL 2264405, at *1 (EEOC May 20,

2008) (citations omitted).

6

district court agreed with the Board as to both Count I and Count

II and granted summary judgment on each. Addressing the two

counts in order, we reverse the court’s summary judgment on

each.

With regard to Count I, the NTSB argued that, because it is

undisputed that Miller learned on October 24, 2001 that he had

not been selected for the Budget Officer position, his counseling

request on January 2, 2002, which came more than 45 days

thereafter, was necessarily tardy. See Motion to Dismiss Mem.

at 8, Miller v. Rosenker, C.A. No. 06-1071 (Feb. 27, 2007)

(Motion to Dismiss Memo.). We disagree. It is indeed

undisputed that Miller was informed on October 24, 2001 that he

had not been selected for the Budget Officer position. See

Motion to Dismiss Memo. 7-8; id. ex. 5 (Oct. 25, 2001 email

from Miller to NTSB Acting CFO Don Libera stating: “You

seem to be saying in yesterday’s meeting that you and Dave

didn’t think I had sufficient supervisory or managerial

experience for the Budget Officer’s job.”); id. ex. 4 (Oct. 24,

2001 email to Miller from NTSB Human Resources Specialist

Bernie Moffett offering to provide list of eligible candidates with

all of the names redacted “except for the name of the person

selected”). But this does not settle the matter. The complaint

alleges that, although “a female was selected in October 2001”

to fill the Budget Officer position, Miller “only discovered this

fact in December 2001.” Am. Compl. ¶ 18. Thus, Miller argues,

it was only in December 2001—fewer than 45 days before his

January 2, 2002 meeting with Guest—that he “reasonably

should . . . have . . . known that the discriminatory matter . . .

occurred,” 29 C.F.R. § 1614.105(a)(2), that is, that he had been

passed over on account of his sex, and that the period was

therefore tolled until then. See Appellant’s Br. 16-18; cf.

Johnson v. Runyon, 47 F.3d 911, 921 (7th Cir. 1995) (45-day

period did not commence until plaintiff learned allegedly

discriminatory reason (hypertension) her employment

7

application was rejected). The NTSB failed to rebut Miller’s

allegation on summary judgment.

“As the party moving for summary judgment, the [NTSB]

bears the initial burden of identifying evidence that demonstrates

the absence of any genuine issue of material fact.” Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (citing Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986)). The Board did not carry

its burden because it offered no evidence to resolve the disputed

material issue of when Miller knew or reasonably should have

known of the alleged discrimination. The Board cited no

evidence demonstrating that Miller knew the identity of the

selectee—or her gender—as of October 24, 2001 or even

“[s]hortly thereafter,” as it now claims, Appellee’s Br. 5. The

only evidence the Board offers is the earlier described October

24, 2001 email to Miller from NTSB Human Resources

Specialist Bernie Moffett, Motion to Dismiss ex. 4, at 1, offering

to forward the redacted eligible candidate list, as well as a copy

of the list itself which, the Board asserts in its brief, Miller

“produced in the administrative phase of this action.” See

Appellee’s Br. 5 (citing Motion to Dismiss ex. 6 (copy of

redacted “Certificate of Eligibles” with attached post-it note

bearing handwritten notation “Copy for Richard Miller”)).

Neither document, however, establishes with any precision the

date on which the Board sent or Miller received his copy of the

list—only that it was sometime between October 24, 2001 and

the undisclosed date in 2002 when Miller produced the document

during the administrative proceedings. On the current record,

then, he may well not have received it until December 2001

when, according to the complaint, he was first aware of the

successful candidate’s gender.

Admittedly, to toll the 45-day limitation period under

regulation 1614.105(a)(2), the plaintiff has a responsibility, when

possible, to further investigate a personnel action in order to

determine whether the action was discriminatory. See, e.g.,

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Pacheco v. Rice, 966 F.2d 904, 907 (5th Cir. 1992) (declining to

apply tolling provision where Hispanic employee claimed he did

not learn non-Hispanic employee was treated more favorably

until three years after incident because “[t]he requirement of

diligent inquiry imposes an affirmative duty on the potential

plaintiff to proceed with a reasonable investigation in response

to an adverse event”); Caprio v. Peters, C.A. No. 08-2555, 2009

WL 2893196, at *2 (3d Cir. Sept. 10, 2009) (no tolling where

employee claimed he did not learn until three years after transfer

it was discriminatorily motivated—when colleague informed him

others similarly situated had not been transferred—noting

plaintiff “d[id] not contend that defendant prevented his access

to information regarding how other mobility-restricted

employees were treated, or that such information was not

reasonably discoverable”); Silver v. Leavitt, C.A. No. 05-0968,

2006 WL 626928, at *8 (D.D.C. Mar. 13, 2006) (tolling

appropriate where “plaintiff had no way of knowing” date

selectees were hired as such information was not made public

and plaintiff was out of office for extended period of time);

Carroll v England, 321 F. Supp. 2d 58, 66 (D.D.C. 2004) (no

tolling where employee had “[c]onstructive knowledge” of

discriminatory act); Hill v. Runyon, 959 F. Supp. 488, 491-92

(N.D. Ill. 1997). Presented with Moffett’s October 24, 2001

offer to provide the name of the person selected for the position,

Miller might well have been able, with little effort, to obtain the

information he claims was necessary to begin the 45-day period

shortly thereafter. Nonetheless, it is the defendant’s burden to

show the plaintiff did not timely contact an EEO counselor,

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997),

and the NTSB has offered scant evidence regarding when Miller

first initiated contact with Ms. Guest. See Decl. of Fara D.

Guest, Mot to Dismiss Ex. 1, ¶ 7 (stating she “d[id] not recall the

exact date that Mr. Miller contacted [her] and expressed the

intention to begin the EEO counseling process”). Because the

9

NTSB failed to carry its burden, the district court erred in

granting summary judgment to the Board on Count I.

The court also erred in granting summary judgment on

Count II—alleging discriminatory non-selection for the Special

Assistant positions. Because Miller’s complaint acknowledges

that he learned the identity of the two successful Special

Assistant candidates in April and May 2001, the Board again

asserts his failure to seek counseling before January 2002

violated regulation 1614.105(a)(2). Miller’s sworn declaration,

however, states that he “first contacted Ms. Guest about [his]

first complaint . . . after learning [he] had not been selected for

the CFO position,”—which he is “confident was in early

April”—and that he “continued to contact Ms. Guest on further

non-selections” and “continued to push Ms. Guest to move

forward” until “[i]n November, she finally agreed to request a

counselor.” Decl. of Richard L. Miller ¶¶ 13, 15 (attached to

Opposition) (Miller Decl.). Viewed in the light most favorable

to Miller, Quigley, supra, this evidence supports Miller’s claim

that he first presented his discrimination claim to Guest in Spring

2001 and sought to move forward on it but that Guest did not

contact a counselor until November 2001. Guest’s statements

notwithstanding, summary judgment was therefore inappropriate.

See Arrington v. United States, 473 F.3d 329, 337 (D.C. Cir.

2006) (“[A] plaintiff may defeat a summary judgment granted to

a defendant if the parties’ sworn statements are materially

different.”).

B. Count III

Count III of Miller’s complaint alleges the NTSB

discriminated against him when it failed to provide an accurate

job description in advance of his performance appraisal (thereby

allowing the appraisal to be performed “arbitrarily and

discriminatorily”), lowered his evaluation in retaliation for his

“EEO activity,” transferred many of his duties to younger and/or

female employees (replacing his duties with “functions

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previously performed by lower graded employees”) and

generally created a hostile work environment. See Am. Compl.

¶¶ 78-87. The district court dismissed Count III on the ground

that Miller failed to respond to—and therefore conceded—two

arguments the NTSB raised in opposition to the count, namely,

that Miller (1) “fail[ed] to timely exhaust his administrative

remedies for Count[] III” and (2) “raised claims already pending

before th[e] Court in a separate action.” 578 F. Supp. 2d at

111-12. We conclude that Miller conceded neither argument.

As to the first argument, NTSB did not assert in its Motion

to Dismiss that Miller had failed to exhaust his administrative

remedies for the sex and age discrimination claims in Count

III—only for the hostile work environment claim and, perhaps,

the retaliation claim therein (neither of which he presses on

appeal, see Appellant’s Br. 4 n.2, 32 n.10). See Motion to

Dismiss Memo. 10. The second referenced argument—the

identity of issues in Miller’s two district court actions—Miller

did directly address in his Opposition. See Miller Decl. ¶ 45.

That Miller’s legal position may not have been meritorious, as

the NTSB contends, does not alter the fact that he did indeed

respond to the Board’s parallel case argument and therefore did

not concede it.2

For the foregoing reasons, we reverse the district court’s

summary judgment on Count I and Count II and its dismissal of

Count III. Accordingly, we remand for further proceedings

consistent with this opinion.

So ordered.

2

In any event, the parallel action—Miller v. Rosenker, C.A. No.

05-2478—had been dismissed on July 25, 2008 and a motion for

reconsideration of the dismissal denied on September 4, 2008, more

than three weeks before the district court’s decision in this case.