United States District Court, D. New Jersey
McNulty United States District Judge
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.
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.
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 Set 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
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs 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 Atl. 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 plaintiffs 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).
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. Iqbal, 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.
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." In re Rockefeller Ctr. Props., Inc. 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).
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
Fed.Appx. 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
Univ., No. 15-CV-8587 (FLW), 2016 WL 6434561, at *l-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))
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
I will therefore consider certain of the EEO documents here.
The Title VII Exhaustion Requirement
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
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).
" 'It is 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 Fed.Appx. 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.'" Id. (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 Hey wood 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 Fed.Appx. 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).
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
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 Fed.Appx. 253, 255 (3d Cir. 2013); Dixon
v. Sec'y U.S. Dep't of Veteran Affairs, 607 F.
App'x, 154 (3d Cir. 2015).
Failure to ...