UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JACQUELINE WILSON,

Plaintiff, 

v. 

JAY CLAYTON,1 Chair of the Securities 

and Exchange Commission,

Defendant. 

Case No. 16-cv-00133 (CRC)

MEMORANDUM OPINION AND ORDER

Securities and Exchange Commission (“SEC”) employee Jacqueline Wilson has sued the 

agency on various claims of discrimination and retaliation. The SEC moves to dismiss most of 

Wilson’s claims for failure to timely exhaust her administrative remedies. For reasons discussed 

below, the Court will treat the motion as one for partial summary judgment and will grant it in 

part and deny it in part. 

I. Background

Jacqueline Wilson, an African-American woman in her fifties, began working at the SEC

in 2008 as an SK-172 Supervisory Auditor in the Office of Inspector General (“OIG”). Compl. 

¶¶ 4, 6, 35. In 2013, Carl Hoeker was appointed as the SEC’s Inspector General and began 

serving as Wilson’s supervisor. Def.’s Mot. to Dismiss (“Mot. to Dismiss”), Ex. A at 3. In

November 2013, Wilson contacted an agency equal employment opportunity (“EEO”) counselor

 

1 Wilson’s complaint names former SEC Chair Mary Jo White as the Defendant. The 

Court has substituted the current Chair, Jay Clayton, pursuant to Federal Rule of Civil Procedure 

25(d).

2 The SEC uses an “SK” pay schedule rather than the “GS” schedule used elsewhere in 

the federal civil service. 
2

to complain that Hoeker and another supervisor were subjecting her to a hostile work 

environment on the basis of age, race, sex, and in retaliation for giving testimony in an unrelated 

agency investigation. Mot. to Dismiss, Ex. E at 1-2. At the conclusion of the counseling 

process, Wilson was notified of her right to file a formal EEO complaint with the agency, Def.’s 

Reply (“Reply”), Ex. D at 20, but she declined to do so. Instead, she requested a transfer and 

was temporarily detailed from OIG to the agency’s Office of Human Resources (“OHR”). Id. at 

19. After several extensions of her detail, Wilson was permanently transferred to OHR in 

November 2014. Id. 

Wilson again contacted an agency EEO counselor the following month. Mot. to Dismiss, 

Ex. D at 19. This time, however, Wilson proceeded to timely file a formal complaint on 

February 23, 2015, checking boxes on the complaint form for “Promotion/Non Selection,” 

“Assignments/Duties,” “Reassignment,” “Transfer,” and “Evaluation/Appraisal.” Pl.’s 

Opposition Mot. to Dismiss (“Opp.”), Ex. 1 at 3. Although Wilson had requested the detail to 

OHR and appears to have agreed to at least one of its extensions, her formal complaint alleged 

that the permanent transfer to OHR was involuntary and that she was assigned a “less equivalent 

position.” Id. at 5. She further claimed that Hoeker pushed her out of OIG by creating a new 

SK-17 position nearly identical to Wilson’s and filling it with a younger, white woman, Rebecca 

Sharek. Id. In a supporting affidavit, Wilson also maintained that Sharek was paid significantly 

more than her while occupying the same position at OIG. Mot. to Dismiss, Ex. A at 7-8. 

Upon receiving Wilson’s formal complaint, the SEC’s Office for Equal Employment 

Opportunity accepted the following claim for investigation: “Whether the SEC discriminated 

against Wilson . . . when on November 16, 2014, [she] was involuntarily transferred from OIG to 

OHR.” Reply, Ex. D at 3. The EEO office issued a Final Agency Decision on October 29, 2016. 
3

Mot. to Dismiss, Ex. D. The decision concluded that Wilson failed to prove by a preponderance 

of the evidence that the alleged adverse employment action—her permanent reassignment to 

OHR—was the result of unlawful employment discrimination. Id. at 18. 

Ninety days after receiving a right-to-sue notice following the agency’s investigation, 

Wilson filed suit in this Court. Her complaint contains three counts: (1) race and sex 

discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (2) 

retaliation, also in violation of Title VII; and (3) age discrimination in violation of the Age 

Discrimination in Employment Act (“ADEA”). The SEC has filed a partial motion to dismiss 

for failure to exhaust administrative remedies with respect to all of the discrete acts of 

discrimination that Wilson contends support the three counts, except her permanent reassignment 

to OHR. 

II. Standard of Review

The SEC has moved to dismiss under Rule 12(b)(6). However, where, as here, “matters 

outside the pleadings are presented to and not excluded by the court, the motion must be treated 

as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d); see also Center for Auto 

Safety v. Nat’l Highway Transp. Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006). Such 

treatment is appropriate if the parties are “given a reasonable opportunity to present all the 

material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Wilson has been accorded a 

reasonable opportunity to respond to and present evidence: the exhibits to Defendant’s motion 

were available to Wilson, and Wilson’s opposition included its own set of supporting exhibits. 

Summary judgment is appropriately granted when “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, the Court must 
4

“‘examine the facts in the record and all reasonable inferences derived therefrom in a light most 

favorable to’ the nonmoving party.” Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation 

omitted). 

III. Analysis

Each of the three counts of Wilson’s complaint—race and sex discrimination under Title 

VII, retaliation under Title VII, and age discrimination under the ADEA—is supported by the 

same six discrete acts of alleged discriminatory and/or retaliatory treatment: (1) that Wilson 

experienced workplace harassment during her tenure at OIG, (2) that the agency selected Ms. 

Sharek over her for the position of Deputy Inspector of Audits in OIG, (3) that she received a 

poor performance evaluation in January 2014, (4) that the agency extended her detail to OHR, 

(5) that she was permanently reassigned to OHR, and (6) that she was paid less than colleagues 

who were younger, white, and male. See Compl. ¶¶ 6-36. Wilson argues that even if a claim 

based on one or more of these discrete acts is time barred, they all comprise a continuing “hostile 

work environment” claim that is not time barred. Opp. 4-6. Finally, Wilson contends that claims 

based on each of these discrete acts are timely because they are “reasonably related” to at least 

one exhausted claim. Id. at 7. 

A. The Discrete Acts Underlying Wilson’s Claims

Federal law protects employees from discrimination on the basis of their race, sex, and 

age. See 42 U.S.C. § 2000e-2 (race and sex); 29 U.S.C. § 633a (age). However, if a federal 

employee wishes to bring suit against her employer alleging a violation of her rights, she must 

first “navigate a maze of administrative processes” to timely exhaust each discrete act alleged. 

Niskey v. Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017).
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First, an aggrieved party must consult with the agency’s EEO Counselor within 45 days 

of the allegedly discriminatory incident. 29 C.F.R. § 1614.105(a). At this initial session, the 

EEO Counselor informs the employee of her rights and responsibilities. Id. § 1614.105(b)(1). If 

the informal counseling process proves unsuccessful, the EEO Counselor must inform the 

employee of her right to file a complaint with the agency. Id. § 1614.105(d). The employee 

must file her formal agency complaint within 15 days of receiving such notice. Id. § 

1614.106(b). The agency then has 180 days to complete an investigation of the complaint. Id. § 

1614.108(e). Upon receiving a final agency decision, the employee may either appeal to the 

Equal Employment Opportunity Commission (“EEOC”) within 30 days or file suit in federal 

court within 90 days. Id. §§ 1614.402(a), 1614.407(a). If an aggrieved party fails to comply 

with this timeline, the discrete discriminatory act is “not actionable.” Nat’l R.R. Passenger Corp. 

v. Morgan, 536 U.S. 101, 113, 122 (2002).

Wilson’s complaint includes allegations concerning events that occurred prior to January 

2014, when she still worked at OIG, and events that took place in connection with her detail and 

eventual transfer to OHR. Although Wilson complained to an EEO counselor in November 2013

about her treatment while working at OIG, she did not subsequently file a formal agency

complaint and thus abandoned those claims. See 29 C.F.R § 1614.106(b). The remaining

question before the Court is which claims were timely exhausted by Ms. Wilson’s second foray 

into the administrative process, which she initiated by again contacting an EEO counselor in 

December 2014 after her permanent transfer to OHR. 

1. Workplace Harassment in OIG

Wilson alleges numerous incidents of workplace harassment while working at OIG from 

February 2013 (when Mr. Hoeker became her supervisor) until January 2014 (when she was 
6

detailed to OHR). Compl. ¶¶ 9-30. As noted above, however, Wilson chose not to file a formal 

complaint after raising these same allegations with an EEO counselor in November 2013. And 

Wilson’s second contact with an EEO counselor was not until December 2014, well past the 45-

day deadline for initiating the informal counseling process with respect to any conduct that 

occurred during her time at OIG. See 29 C.F.R. § 1614.105(a). Additionally, Wilson did not 

check the box for “harassment” on her formal complaint, nor did the agency accept that issue for 

investigation. Mot. to Dismiss, Ex. D; Opp. Ex. 1 at 3. Wilson therefore failed to exhaust her 

workplace harassment claim. 

2. Non-Selection for Deputy Inspector Position

Wilson checked off “non-selection” on her formal agency complaint, presumably in

reference to OIG’s decision in January 2014 to hire Rebecca Sharek as Deputy Inspector General 

for Audit. See Compl. ¶ 29; Opp., Ex. 1. But because the decision to hire Ms. Sharek took place 

almost a year before Wilson contacted an agency EEO counselor in December 2014, Compl. ¶ 

29, Mot. to Dismiss, Ex. D at 19, any claim based on the non selection is time barred. 29 C.F.R. 

§ 1614.105(a).

Nevertheless, even time-barred claims may be allowed to proceed if the agency decided

them on the merits. See Doak v. Johnson, 798 F.3d 1096, 1104–05 (D.C. Cir. 2015) (finding that 

an agency can waive the deadline for contacting an EEO counselor if it accepts, investigates, and 

decides a claim on the merits). Wilson contends that her non-selection claim was exhausted 

because the agency “addressed” and “made legal conclusions” about it in its final agency 

decision. Opp. at 8. But to the extent the decision did so, it was only in the context of deciding 

whether Wilson had established a prima facie case of discrimination with respect to her 

permanent reassignment claim, which again was the only claim accepted for investigation. Mot. 
7

to Dismiss, Ex. D at 9-10 (finding that Sharek’s relative pay did not establish the disparatetreatment prong of prima facie discrimination because she and Wilson had different job 

responsibilities). Nowhere does the final agency decision discuss, let alone resolve, Wilson’s 

claim that the agency engaged in unlawful discrimination by hiring Sharek over her for the 

Deputy Inspector position. Wilson’s non-selection claim must therefore be dismissed. 

3. Performance Evaluation

Wilson checked off “evaluation/appraisal” on her formal complaint, presumably in 

reference to a negative performance evaluation she received in January 2014. Opp., Ex. 1 at 3; 

Compl. ¶ 30. But because the performance evaluation is a discrete act that occurred more than 

45 days before Wilson complained to an EEO counselor in December 2014, the claim is time 

barred. 

4. Detail Extensions

Wilson’s complaint alleges that her detail to OHR “was extended three times.” Compl. ¶ 

33. However, the last extension occurred on October 19, 2014, more than 45 days before Wilson 

contacted an EEO counselor on December 22, 2014. Mot. to Dismiss at 9; see 29 C.F.R. § 

1614.105(a). The final agency decision mentions the detail extensions in the context of Wilson’s 

permanent reassignment claim by noting that their voluntary nature tends to prove that the 

permanent reassignment was not an adverse employment action. Mot. to Dismiss, Ex. D at 7. 

But the decision does not analyze the detail extensions as a separate discrimination claim, nor 

does it resolve that issue on the merits. The claim is therefore not exhausted. 

5. Permanent Transfer

Wilson’s permanent transfer to OHR occurred on November 16, 2014, less than 45 days 

before she contacted an EEO counselor. Compl. ¶ 34. It is the main subject of her formal 
8

complaint and the agency accepted the claim for investigation. Opp., Ex. 1 at 5; Mot. to Dismiss, 

Ex. D at 3. Neither party disputes that this claim was properly exhausted. Thus, it may proceed. 

6. Discriminatory Pay

In her present complaint, Wilson alleges that she was paid less than similarly situated 

white and male employees “over many years.” Compl. ¶¶ 36, 42, 48, 53. This claim is based on 

two purported salary differences: (1) Wilson’s salary compared with white and male SK-17s 

when she was working at OIG; and (2) Sharek’s higher OIG salary after Wilson had been

transferred to OHR. 

Like her other claims from her tenure at OIG, Wilson’s first salary-based claim is time 

barred. Although each paycheck that results from a discriminatory compensation decision 

“triggers a new filing period,” Hammel v. Marsh USA Inc., 206 F. Supp. 3d 219, 231 (D.D.C. 

2016), Wilson had ceased working at OIG about a year before she made her second informal 

complaint, and both her position and title had changed.3 Compl. ¶¶ 34-35. Therefore, any 

paycheck resulting from a “discriminatory compensation decision” regarding Wilson’s OIG pay

would have been issued more than 45 days before Wilson’s second contact with an EEO 

counselor in December 2014. Hammel, 206 F. Supp at 230.

Wilson’s second salary-based claim—that her OIG salary was below Sharek’s—was 

properly exhausted. Wilson timely raised the salary discrepancy between herself and Sharek in 

an affidavit submitted during the administrative process. See Mot. to Dismiss, Ex. A at 7-8. 

Although she specifically raised the issue in connection with a claim under the Equal Pay Act—

 

3 Wilson’s discriminatory pay claim does not appear to implicate her current OHR salary, 

which was retroactively raised in February 2015 to the date of her permanent reassignment in 

November 2014. See Compl. ¶ 36. 
9

which the agency properly rejected because the Equal Pay Act only addresses salary differentials 

between women and men—Wilson put the agency on adequate notice that she was challenging 

her pay as compared to a younger, white woman. That was sufficient to meet the exhaustion 

requirement. See Coleman v. Duke, 867 F.3d 204, 210 (D.C. Cir. 2017) (finding that plaintiff 

had exhausted his timely retaliation claim even though the agency did not officially accept the 

claim for investigation or discuss it on the merits because the agency had notice of the claim). 

Therefore, Wilson’s claim that Sharek was paid more than her while working in a similar 

position at OIG may proceed as a basis for the age and race discrimination claims set forth in the 

complaint. 

B. Hostile Work Environment

Wilson attempts to salvage her time-barred claims by arguing that they all form part of a 

distinct continuing hostile work environment claim. Opp. at 2. Hostile work environment 

claims allege a pattern of repeated discriminatory conduct that constitutes one single “unlawful 

employment practice.” Morgan, 536 U.S. at 122. In determining whether a series of acts 

constitutes a hostile work environment claim, courts consider whether the acts “involved the 

same type of employment actions, occurred relatively frequently, and were perpetrated by the 

same managers.” Id. at 120. Where a series of alleged acts comprise a hostile work environment 

claim, that claim is not time barred “as long one act falls within” the statutory filing period. Id.

at 122. 

Despite this more lenient standard, Wilson still did not exhaust her hostile work 

environment claim. Wilson included a hostile work environment claim in her November 2013 

informal complaint to an agency EEO counselor, but she failed to pursue it by filing a formal 

agency complaint. Mot. to Dismiss, Ex. E at 2. Therefore, the only way Wilson could have 
10

exhausted a hostile work environment claim is if she made her second informal EEO complaint 

within 45 days of an incident that constitutes part of the claim. See Morgan, 536 U.S. at 122. 

But by the time Wilson reinitiated the informal EEO process in December 2014, she had already 

been working at OHR for almost a year under a different supervisor. See Compl. ¶ 29. And the 

only incident that occurred within 45 days of the second EEO contact—the permanent 

reassignment to OHR—is not so “similar in nature” to Wilson’s harassment allegations from her 

time at OIG that together they form a single hostile work environment claim. Baird v. Gotbaum, 

662 F.3d 1246, 1251 (D.C. Cir. 2011).

C. “Reasonably Related” Exception

Finally, Wilson argues that her time-barred claims should proceed because they fall under 

the “reasonably related” exception to the agency exhaustion requirement, which allows a court to 

hear claims that are “like or reasonably related to” claims that were timely exhausted. See

Pierson v. Wash. Metro Area Transit Auth., 821 F. Supp. 2d 360, 364 (D.D.C. 2011). While the 

D.C. Circuit has questioned whether this exception still exists, see Mount v. Johnson, 664 F. 

App’x 11 (D.C. Cir. 2016), that is irrelevant here: the exception only applies to claims of 

discrimination or retaliation that occur after the filing of an administrative complaint. See

Mount v. Johnson, 36 F. Supp. 3d 74, 84 (D.D.C. 2014). Because all of Wilson’s time-barred 

claims arose before her second contact with an EEO counselor in December 2014, this exception 

cannot apply.4

 

4 For the sake of clarity, the Court notes that just because an unexhausted allegation 

cannot form the basis of a Title VII or ADEA claim does not mean that the events giving rise to 

the allegation cannot be considered as evidence of a different claim that was administratively 

exhausted. In other words, at the summary judgment stage or at trial, Ms. Wilson can proffer 

evidence related to her time-barred claims as support for her exhausted claims so long as that 

evidence is both admissible and relevant to the exhausted claims.
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IV. Conclusion

For the foregoing reasons, it is hereby 

ORDERED that [11] Defendant’s Motion to Dismiss in Part is GRANTED in part and 

DENIED in part.

SO ORDERED.

CHRISTOPHER R. COOPER

United States District Judge

Date: September 28, 2017