UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) VIRNA L. SANTOS, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1039 (ABJ) ) LORETTA LYNCH, ) ) Defendant. ) ____________________________________)
MEMORANDUM OPINION Plaintiff Virna L. Santos has brought this action against defen dant Loretta Lynch, in her official capacity as Attorney General of the United States, all eging that her former employer, the Department of Justice, violate d Title VII of the Civil Rights A ct, 42 U.S.C. § 2000e-3(a), when it retaliated against her and terminated her from her employment for engaging in protected activity. Compl. [Dkt. # 1]. Defendant has moved to dismiss this matter p ursuant to Rule 12(b)(6), on the grounds that plaintiff filed her civil action prematurely, prior to the expiration of the 180-day waiting period imposed by 29 C.F.R. § 1614.407(d). Def.’s Mot. to Dismiss [Dkt. # 17] (“Def.’s Mot.”). Because the Court finds that defendant is correct that plaintiff initiated this civil action before exhausting her administrative remedies, defendant’s motio n will be granted, and this case will be dismissed without prejudice.
BACKGROUND Plaintiff is an attorney and was formerly employed by the Unite d States Department of Justice, Criminal Division, Offi ce of Overseas Prosecutorial De velopment, Assistance and Training. Compl. ¶ 4. From March 2011 until December 2013, she was the Regional Director of2 Latin America and the Caribbean, and from December 2013 until S eptember 2014, she was the Regional Director of the Judicial Studies Institute. Id. Plaintiff claims that she engaged in protected activity when she reported alleged instances of misconduct by Kevin Sundwall, a Senior Resident Legal Assist ant (“RLA”), to the Director and Deputy Director of her office, and when she later objected to w hat she perceived to be retaliation by those Directors against the employees who had complained to pl aintiff about Sundwall. Compl. ¶ 6. She reported both issues to the Directors’ supervisor, the Deputy Assistant Attorney General.
Id. Plaintiff states that she was told in February 2013 that she ha d “exposed” her office’s “leadership to the front office” by reporting the misconduct, a nd that “her continued tenure would not be guaranteed” as a result. Id. ¶ 7. She also alleges that she complained that one of her subordinates “touched her ina ppropriately” in July 2013, and th at she was demoted shortly thereafter. Id. ¶ 8. Plaintiff claims that she was eventually terminated “based on false grounds of a lack of funding.” Id. ¶ 9. Plaintiff filed an administrative complaint with the Department of Justice against her former office on August 25, 2014. Compl. ¶ 3; Compl. of Discrimi nation, Ex. A to Compl. [Dkt. # 1]. On December 15, 2015, the agency issued its final decisio n in her case, and plaintiff received the final decision, through counsel, on December 21, 2015. Compl. ¶ 3. Plaintiff appealed the final agency decision to the Equal Employment Opportunity Commi ssion (“EEOC”) on January 11, 2016. Pl.’s Opp. to Def.’s Mot. [&] Related Req. for Interi m Stay [Dkt. # 20] (“Pl.’s Opp.”) at 1; see also Notice of Appeal/Pet., Ex. 2 to D ef.’s Mot. [Dkt. # 17-2]. While that appeal was pending, plaintiff initiated this civil ac tion in the United States District Court for the Eastern District of California on March 1 4, 2016. Compl. On May 27, 2016, the parties jointly stipulated to the transfer of the case to t his District, see Stipulation & Proposed3 Order Re: Def.’s Mot. for Dismissal or Transfer [Dkt. # 13], an d the case was assigned to this Court on June 2, 2016. Order Grantin g Stipulation Re: Def.’s Mo t. for Dismissal or Transfer [Dkt. # 14]. On June 7, 2016, defendant moved pursuant to Rule 12(b)(6 ) to dismiss plaintiff’s claims as untimely filed. Def.’s Mot.
STANDARD OF REVIEW “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint mu st contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is pl ausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleg ed.” Id. , citing Twombly , 550 U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. , quoting Twombly , 550 U.S. at 556. A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id. , quoting Twombly , 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of act ion, supported by mere concluso ry statements, do not suffice.”
Id. , citing Twombly , 550 U.S. at 555. When considering a motion to dismiss under Rule 12(b)(6), the C ourt is bound to construe a complaint liberally in the plaintiff’s favor, and it should gr ant the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. See id. ; Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily4 consider only “the facts alleged in the complaint, documents at tached as exhibits or incorporated by reference in the complaint, and matters about which the Cour t may take judicial notice.”
Gustave-Schmidt v. Chao , 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis
Xavier Parochial Sch. , 117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS Defendant has moved to dismiss this case in its entirety without prejudice, on the grounds that plaintiff failed to comply with the requirements imposed by 29 C.F.R. § 1614.407. Def.’s Mot. Specifically, defendant maintains that because plaintiff ap pealed the agency’s December 2015 final decision, she was requi red to wait to file a civil ac tion in federal court until after receiving the EEOC’s final decision on her appeal or 180 days a fter filing the appeal if no final decision was rendered. Def.’s Mot. at 3, citing 29 C.F.R. § 161 4.407(c)–(d). Because the Court agrees that plaintiff failed to c omply with those requirements, it will grant defendant’s motion. 1 Under Title VII, a plaintiff “must timely exhaust [her] adminis trative remedies before bringing [her] claims to court.” Payne v. Salazar , 619 F.3d 56, 65 (D.C. Cir. 2010) (internal quotation marks and citations o mitted). While the time limits for filing imposed by Title VII and the related EEOC regulations are “not a jurisdic tional prerequi site to suit in federal court” and are

1 Plaintiff was represented by counsel when this matter was file d in the Eastern District of California, and her counsel’s ma iling address and email address have appeared on each of the pleadings she has filed since the case was transferred to this Co urt. Furthermore, her counsel has represented that he is her “current attorney” and that he “will continue to represent her,” and he notified the Court that he planned to submit an application for admission to this District “on or before July 15, 2016.” Pl.’s Resp. to July 6, 2016 Ct. Order [Dkt. # 23]. However, her counsel has still not entered an appearance in this matter, and so, in an abundance of caution, the Court has held plaintiff to the “less stringent standards” of review applic able to pro se litigants in ruling on defendant’s motion to dismiss. See Haines v. Kerner , 404 U.S. 519, 520–21 (1972); Schnitzler v. United States , 761 F.3d 33, 38 (D.C. Cir. 2014) (directing that in actions br ought by a pro se plaintiff, a district court has an obligation “to consider his filings as a whole before dismissing a complaint”), citing Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999).5 therefore “subject to waiver, estoppel, and equitable tolling,” they nevertheless operate “like a statute of limitations” that can bar a claim that is untimely f iled. See Martini v. Fed. Nat’l Mortg.
Ass’n , 178 F.3d 1336, 1348 (D.C. Cir. 1999); see also, e.g. , Koch v. White , 967 F. Supp. 2d 326, 332 (D.D.C. 2013) (observing that “[t]he ninety-day time limit” in 29 C.F.R § 1614.407(c) “functions like a statute of limitations”), quoting Mack v. WP Co. , 923 F. Supp. 2d 294, 298 (D.D.C. 2013). As part of that exhaustion proces s and pursuant to regulations promulgated by the EEOC, “[a] complainant who has filed an individual complaint . . . is authorized under [T]itle VII . . . to file a civil action in an appropriate United States District Co urt” only in one of the four following circumstances: (a) Within 90 days of receipt o f the final action on an individ ual or class complaint if no appeal has been filed; (b) After 180 days from the date of filing an individual or cla ss complaint if an appeal has not been filed and final action has not been t aken; (c) Within 90 days of receipt o f the Commission’s final decisio n on an appeal; or (d) After 180 days from the date of filing an appeal with the C ommission if there has been no final decision by the Commission. 29 C.F.R. § 1614.407; see also 42 U.S.C. § 2000e-16(c) (providing that a plaintiff “may file a civil action” under Title VII within 90 da ys of receiving notice of f inal action taken by the agency or a decision by the EEOC on an appeal, or 180 days after filing the initial charge with the agency or an appeal with the EEOC if no action has been taken). Here, plaintiff appealed from the agency’s final decision, and that appeal is still pending before the EEOC. See Pl.’s Opp. at 1 (“[T]he plainti ff has pending an appeal with th e Equal Employment Opportunity Co mmission, filed on January 11, 2016.”) . So subsections (a), (b), and6 (c) of 29 C.F.R § 1614.407 are inapp licable. And plaintiff does n ot contest that she filed her civil suit before the 180-day period fro m the date of filing her appe al expired. Id. (stating that she filed her EEOC appeal on January 11, 2016, and that she filed her dis trict court ac tion on March 14, 2016). Instead, she asks that the C ourt enter an “interim stay” of these proceedings until the 180- day period has elapsed, arguing that “the ‘[s]uspension of proc eedings is preferable to dismissal with leave to refile’ as a remedy for premature filing of discr imination suits.” Id. at 1–2, quoting Oscar Mayer & Co. v Evans , 441 U.S. 750, 765 n.13 (1979). 2 But the plain text of section 1614.407 and the case law applying it make clear that where a civil action has been filed before the relevant time period has elapsed, dismissal without prejudice is required. The regulation provides “[a] complainant who has fi led an individual complaint . . . is authorized . . . to file a civil action in an appropriate United St ates District Court . . . [a]fter 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission.” 29 C.F.R. § 1614.407(d). In other words, any c ivil action filed in a District Court before the 180-day period has elapsed is not authorized. For that reason, courts have routinely dismissed as premature c ases filed before the relevant waiting period has expired. See, e.g. , Martini , 178 F.3d at 1338 (“Finding that Title VII requires complainants to wait 180 days before suing in federal court so that the Commission may informally resolve as many charges as possible, we reverse the judgment in [the plaintiff’s] favor and remand with instructions to dismiss he r untimely suit without prejudic e.”), citing 42 U.S.C. § 2000e5(f)(1); McAlister v. Potter , 733 F. Supp. 2d 134, 144 (D.D.C. 2010) (“As it often takes lo nger than 180 days to make a determination on an appeal, at the end of 180 days, an employee can

2 The 180-day waiting period im posed by section 1614.407(d) elap sed on July 11, 2016, the same day the Court received plaintiff’s request for an interim s tay, and so it seems that her motion to stay these proceedings is moot in any event.7 terminate the EEOC appeals process and immediately file a claimwith the federal court. However, a lawsuit filed within that 180 days will be dismissed as premature . . . .”) (internal citations omitted); Jones v. Ashcroft , 321 F. Supp. 2d 1, 10 (D.D.C. 2004) (“Title VII and EEOC regul ations allow a civil suit to be filed after 180 days from the date of filing an appeal if the EEOC has not issued a final decision. . . . Ordinarily, individuals who fail to comply with these administrative deadlines will be denied a judicial audience.”), citing Brown v. Marsh , 777 F.2d 8, 14 (D.C. Cir. 1985). 3 In essence, plaintiff insists that because 180 days have now pas sed since she filed her appeal before the EEOC, the C ourt should not dismiss her case and should instead permit it to

3 The case plaintiff cites in support of her request to stay thi s matter, see Pl.’s Opp. at 1–2, citing Oscar Mayer , 441 U.S. at 765 n.13, is distinguishable. It is true that in that case, the Supreme Court opted to stay the federal litigation while the plaintiff undertook a necessary preliminary step at the state administrative level. But Oscar Mayer did not involve Title VII or the EEOC regulations that call for the exhaustion of federal administrat ive remedies; it dealt with section 14(b) of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. That section provides that in a challe nge to an unlawful employment practice occurring in a state which has its own remedies for discr imination, “no suit may be brough t [under the ADEA] before the expiration of sixty days after proceedings have been commenced under the State law.” Oscar Mayer , 441 U.S. at 759 (emphasis in o riginal), quotin g 29 U.S.C. § 63 3(b). Focusing on the word “commenced,” the Court stated that section 14(b) “does not stip ulate an exhausti on requirement,” id. at 759–61, and it ordered that the plaintiff’s “federal suit sh ould be held in abeyance” until after he had “fil[ed] a signed complai nt” with the state civil rights commission and waite d the required sixty days or had his state claim dismissed. Id. at 764–65. The Court’s reading of the provision was not further explained and it was not shared by all of the J ustices. See id. at 767 (Stevens, J., concurring in part and dissen ting in part) (“Section 14(b) . . . explicitly states that ‘no suit may be brought’ under the Act until the individual has first resorted to appropriate state remedies. Respondent has concededly never r esorted to state remedies. Inmy judgment, this means that his suit should not have been brought and should now be dismissed.” ). But in any event, the Oscar Mayer opinion did not hold that a stay is required in all circumstance s, and it did not purport to interpret the statutory and regulatory regime at issue here. Ac cording to the Circuit precedent binding on this Court, Title VII and the EEOC regulations clear ly impose an exhaustion requirement that operates like a statute of limitations to bar a claim that has been filed in contravention of the established deadlines. See, e.g. , Martini , 178 F.3d at 1348; see also Koch , 967 F. Supp. 2d at 332. And so plaintiff’s failure to wait the required 180 days before initiating her federal civil suit is fatal to her claim.8 proceed. See Pl.’s Opp. at 1 (“Given that the requisite 180 days will lapse in just 5 more days [from the date of plaintiff’s opposition], there is little reas on to dismiss this action and require its refiling.”). But as another District Court observed when faced with an identical argument against dismissal, to do so would be to “disregard the plain language o f the statute and regulations based on [a] result-oriented approach,” because it would excuse every p laintiff from complying with the exhaustion requirement “so long as 180 days had elapsed by the time the defendant’s response to the complaint was due.” Bell v. Donley , 724 F. Supp. 2d 1, 15 (D.D.C. 2010) (rejecting the plaintiff’s argument that “because 180 days have now elapsed since the filing of her EEO complaint, her claims are now ripe”). As that court stated, “[t]h is is a wholesale rewriting of the statute and regulation,” and “it undermines the exhaustion proc ess by cutting short the time the employer has to resolve the administrative complaint.” Id. This reasoning similarly applies here. 4 Because the Court finds that dismissal is required pursuant to 29 C.F.R. § 1614.407(d), and because the date for the stay sought by plaintiff has passed, th e Court will grant defendant’s motion to dismiss this case without pr ejudice and deny as moot plainti ff’s motion for a stay. A separate order will issue.

AMY BERMAN JACKSON United States District Judge DATE: July 20, 2016
4 Plaintiff also argues that it would be “lacking in purpose” to dismiss this action and require plaintiff to refile it because her “EEOC appeal is extremely li mited in scope” and “does not even pertain to the gravamen of this case.” Pl.’s Opp. at 2. But the regulation does not provide different exhaustion requirements based on the nature or extent of EEOC a ppeals taken from final agency actions: it authorizes a civil action in federal court “[a]fte r 180 days from the date of filing an appeal with [the EEOC].” 29 C.F.R. § 1614.407(d) (emphasis added). So plaintiff’s second argument against the dismissal of this matter is similarly unav ailing.