Full Opinion (html_with_citations)

                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    PATRICIA J. OHLUND,

                        Plaintiff,

                        v.                           Case No. 1:22-cv-02911-TNM

    ANTONY BLINKEN,

                        Defendant.


                                     MEMORANDUM ORDER

         Patricia Ohlund is a U.S. citizen who worked for the U.S. Embassy in Germany.

Proceeding pro se, she sues Secretary of State Antony Blinken under the Age Discrimination in

Employment Act (ADEA) for denying her retirement benefits because of her age. The Secretary

has moved to dismiss, arguing that Ohlund failed to timely exhaust administrative remedies. The

Court denies that motion because Ohlund pleads facts sufficient to trigger an equitable exception

to timely exhaustion.

                                                I.

         Ohlund worked for the U.S. Embassy in Germany from 2005 to 2018. See Compl. at 9,

ECF No. 1. 1 When she began, she was older than 45 years old. See id. And because of that,

Ohlund was denied retirement benefits under the Embassy’s Defined Benefit Plan, which

categorically excluded employees who started work after their 45th birthday. See id. According

to Ohlund, the State Department told employees that German law governed the Plan and that the

age threshold was thus legal. See id. But in 2014 and 2015, a German court found age-based



1
    The page number citations to Ohlund’s filings are those generated by CM/ECF.

                                                1
eligibility requirements like those in the Plan illegal under German law. See id.; see also Pl.’s

Opp’n to Def.’s Mot. to Dismiss (Opp’n) at 12, ECF No. 41. After the 2015 decision, State

terminated the Plan. See Compl. at 9. Yet it failed to implement a new, age-neutral plan until

after Ohlund retired. See id. So Ohlund has received no retirement benefits, despite turning 65.

See id.

          Ohlund and her colleagues formed a subcommittee within their local employee

association in 2019 to request review of State’s alleged age discrimination. See Opp’n at 7. And

they met with staff about gaining retroactive retirement benefits. See id. at 7–8. But State

eventually issued an official notice—cable 20 STATE 21066—denying retroactive benefits to

Ohlund and her colleagues in February 2020. See id. at 8.

          Soon after, State placed most of its staff on administrative leave or teleworking status

because of the COVID-19 pandemic. See id. When the Embassy reopened several months later,

Ohlund again met with the subcommittee to assess legal options. See id. at 9. Ohlund claims she

tried to contact an Equal Employment Opportunity Commission counselor in June 2020, but

none of the names and addresses on the website were valid. See id. So she contacted another

EEOC branch and eventually reached a counselor a month later. See id. That counselor told

Ohlund she could file a formal discrimination complaint, and she did soon after. See Compl. at

32–36 (formal EEOC complaint).

          But that process proved fruitless. The EEOC dismissed Ohlund’s case because she had

failed to timely contact a counselor as required by regulation. See id. at 24–29 (EEOC decision).

And the EEOC denied her request for reconsideration. See id. at 11–13. So Ohlund sued the

Secretary, alleging that State violated the ADEA by denying her retirement benefits. See




                                                   2
generally Compl.; Opp’n. 2 The Secretary moved to dismiss under Rule 12(b)(6), claiming that

Ohlund’s ADEA claim is untimely. See Def.’s Mem. in Support of Mot. to Dismiss (MTD),

ECF No. 38-1. This Court has jurisdiction under 28 U.S.C § 1331.

                                                 II.

        To survive a Rule 12(b)(6) motion, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), that

states a facially plausible claim for relief, see Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570

(2007). A claim is facially plausible when its facts “allow[] 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). In evaluating a Rule 12(b)(6) motion, courts construe the complaint in the light

most favorable to the plaintiff and accepts as true all reasonable inferences. Zimmerman v. Al

Jazeera Am., LLC,
246 F. Supp. 3d 257, 285
 (D.D.C. 2017).

       Because Ohlund is pro se, the Court considers all her filings, including documents

attached to her Complaint, see Brown v. Whole Foods Mkt. Grp., Inc.,
789 F.3d 146, 152
 (D.C.

Cir. 2015), and holds her submissions to “less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94
 (2007) (cleaned up).

       To sue under the ADEA, Ohlund must have first timely exhausted administrative

remedies. See Washington v. WMATA,
160 F.3d 750, 752
 (D.C. Cir. 1998). As relevant here,

she “must [have] initiat[ed] contact with a[n] [EEOC] Counselor within 45 days” of the alleged

discrimination.
29 C.F.R. § 1614.105
(a)(1). The EEOC “shall extend the 45-day time limit” if



2
  Ohlund also sued for age discrimination under German law. See Compl. at 9. But she
voluntarily dismissed those claims after reviewing the Secretary’s motion to dismiss. See Opp’n
at 15.


                                                  3
Ohlund shows that “she was not notified of the time limits and was not otherwise aware of

them,” or that “she did not know and reasonably should not have known that the discriminatory

matter . . . occurred,” or “for other reasons considered sufficient.”
Id.
 § 1614.105(a)(2).

       The ADEA’s exhaustion requirement is not jurisdictional. See, e.g., Menominee Indian

Tribe of Wis. v. United States,
614 F.3d 519, 527
 (D.C. Cir. 2010). Rather, it functions as a

statute of limitations and is therefore an affirmative defense that the Secretary “bears the burden

of pleading and proving.” Bowden v. United States,
106 F.3d 433, 437
 (D.C. Cir. 1997).

Because the requirement is non-jurisdictional, it is also subject to equitable estoppel. See

Kennedy v. Whitehurst,
690 F.2d 951, 962
 (D.C. Cir. 1982). That doctrine bars a defendant who

“took active steps to prevent [a] plaintiff from litigating in time,” from asserting untimeliness.

Currier v. Radio Free Eur./Radio Liberty, Inc.,
159 F.3d 1363, 1367
 (D.C. Cir. 1998). 3

       The “traditional elements” of equitable estoppel include “[a] false representation, a

purpose to invite action by the party to whom the representation was made, ignorance of the true

facts by that party,” “reliance,” “a showing of an injustice,” and “lack of undue damage to the

public interest.” ATC Petroleum, Inc. v. Sanders,
860 F.2d 1104, 1111
 (D.C. Cir. 1988). Courts

have noted that the doctrine may apply when a plaintiff “has been induced or tricked by [her]

adversary’s misconduct into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans

Affs.,
498 U.S. 89, 96
 (1990); see also Currier,
159 F.3d at 1368
 (applying equitable estoppel

when a defendant’s misleading statements made a plaintiff reluctant to timely file a



3
   The Supreme Court and the D.C. Circuit “have occasionally conflated” equitable estoppel with
equitable tolling. Currier,
159 F.3d at 1367
. But the two “have distinct criteria.”
Id.
 Equitable
tolling “allows a plaintiff to avoid the bar of the limitations period if despite all due diligence he
is unable to obtain vital information bearing on the existence of his claim.”
Id.
 Equitable
estoppel, on the other hand, “prevents a defendant from asserting untimeliness where the
defendant has taken active steps to prevent the plaintiff from litigating in time.”
Id.

                                                  4
discrimination complaint). And courts have been more willing to excuse untimely filings when

pro se parties “make diligent but technically defective efforts to act within a limitations period.”

Bowden,
106 F.3d at 438
.

                                                III.

        Because the Secretary argues that Ohlund’s claim is untimely, see MTD at 4–7, he bears

the initial burden of proof, see Bowden,
106 F.3d at 437
. He argues that Ohlund did not contact

an EEOC counselor within 45 days of knowing that she had a discrimination claim. See MTD at

4–5. The Secretary claims that Ohlund knew of her claim—at the latest—when State issued the

official notice denying her retirement benefits in February 2020. See id. at 5. And, as Ohlund

concedes, she did not contact a counselor until July 2020. See Compl. at 10. Her claim was

therefore untimely by about three months. See id. at 25 (EEOC decision). So the Secretary has

satisfied his initial burden.

        The burden now shifts to Ohlund to show that the Secretary should be estopped from

raising an untimeliness defense. See Bowden,
106 F.3d at 437
. Recall that Ohlund claims State

consistently misled her by telling her the Plan was “governed by German law” and “fully

complied with applicable local employment laws in Germany.” Compl. at 9; Opp’n at 21.

Ohlund explains that even if she had been aware of the ADEA’s 45-day time limit, she “would

not have considered [it] relevant to [her] situation.” Opp’n at 22. Indeed, she alleges that State

“held and communicated openly that the EEO[C] channel was not available for matters related”

to the Plan. See Compl. at 15. Ohlund also claims that the COVID-19 pandemic and lack of

active EEOC counselors listed on the website delayed her in contacting an EEOC counselor. See
id.
 at 22–23. More, Ohlund asserts that she diligently pursued her discrimination claim as early




                                                  5
as 2019 when she sought relief for herself and other affected colleagues by forming a

subcommittee to meet with the Embassy. See id. at 22.

       Crediting Ohlund’s allegations as it must, the Court finds that Ohlund has pled facts

sufficient to support a claim of equitable estoppel. Accord Fantasia, No. 22-cv-0100,
2022 WL 17475392
, at *3 (D.D.C. Dec. 6, 2022) (finding the same for similarly situated U.S. Embassy-

Germany employee). Ohlund alleges that State misled her about which law governed the benefit

plan, see, e.g., Compl. at 9; Opp’n at 21, which supports barring the Secretary from claiming

Ohlund was tardy in contacting an EEOC counselor, see, e.g., Currier,
159 F.3d at 1368
; Smith-

Thompson, 657 F. Supp. 2d at 133. And despite missing the deadline to contact a counselor,

Ohlund asserts that she diligently pursued her discrimination claim from 2019 onward—a fact

other courts have found salient. See, e.g., Bowden,
106 F.3d at 438
; Symko v. Potter,
505 F. Supp. 2d 129
, 136–37 (D.D.C. 2007). Finally, Ohlund’s pro se status also supports estoppel.

See Bowden,
106 F.3d at 438
.

       To be sure, Ohlund’s burden at summary judgment will be higher. The D.C. Circuit has

cautioned that equitable estoppel’s “application to the government must be rigid and sparing . . .

and will certainly include proof of each of the traditional elements of the doctrine.” Sanders,
860 F.2d at 1111
; accord Rahimi v. Weinstein,
271 F. Supp. 3d 98
, 103–04 (D.D.C. 2017). But on

these facts at the motion-to-dismiss stage, the Court will estop the Secretary from using Ohlund’s

lateness as a defense.

                                            *    *   *




                                                 6
For these reasons, it is hereby

       ORDERED that the Secretary’s Motion to Dismiss is DENIED.

       SO ORDERED.


                                                                       2022.12.29
Dated: December 29, 2022                                               09:41:28 -05'00'
                                                     _____________________________
                                                     TREVOR N. McFADDEN, U.S.D.J.




                                          7