Dick v. Holder , 80 F. Supp. 3d 103 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL G. DICK, :
:
Plaintiff, : Civil Action No.: 13-1060 (RC)
:
v. : Re Document No.: 21
:
ERIC H. HOLDER, JR., et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ SUPPLEMENTAL MOTION TO
DISMISS OR FOR PARTIAL SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Michael G. Dick (“Agent Dick”), a Special Agent with the Federal Bureau of
Investigation (“FBI”), brought this action against the United States Attorney General and FBI
Director (collectively, “Defendants”) in their official capacities. His first amended complaint
alleges that he suffered discrete acts of discrimination and a hostile work environment because of
his disability, in violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., and because of his
age, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et
seq. Agent Dick also claims that he suffered retaliation for his opposition to this alleged
discrimination, in violation of both statutes. Defendants have moved to dismiss or for summary
judgment on most of Agent Dick’s claims on the basis of failure to exhaust or failure to state a
claim. See ECF No. 21. For the reasons given below, the Court grants their motion in part and
denies it in part.
II. FACTUAL BACKGROUND
Agent Dick was a GS–1811 Series Special Agent with the FBI at all times relevant to this
case. See First Am. Compl. ¶ 1, ECF No. 19. On May 7, 2013, he injured his right hand during
his quarterly firearms qualification testing. See id. ¶¶ 91–93. After various administrative
hurdles prevented him from obtaining prompt medical treatment, he called the FBI Health
Services Unit and expressed frustration with an FBI human resources official. See id. ¶ 109.
The following day, May 8, 2013, the FBI released a nationwide “Be on the Lookout” (“BOLO”)
alert containing allegedly false claims that Agent Dick was on “administrative leave during a
pending investigation” and had “made threats to his chain of command.” See id. ¶ 110; see also
BOLO, Pl.’s Ex. 1, ECF No. 23-2. 1 The day after the BOLO’s issuance, the FBI suspended
Agent Dick’s security clearance. See First Am. Compl. ¶ 115.
Agent Dick responded with complaints of disability discrimination. On May 23, 2013,
his attorney Kevin E. Byrnes (“Byrnes”) informed an FBI official by email that Agent Dick “is
invoking all the protections of the . . . Rehabilitation Act” and “is asserting that you are
perceiving him as disabled and have tried to revoke his clearance based on the perception that he
is mentally unfit.” Byrnes email of May 23, 2013, Compl. Ex., ECF No. 19. On June 7, 2013,
Byrnes advanced similar claims in a letter to the FBI human resources official whom Agent Dick
had criticized. See Byrnes letter of June 7, 2013, Pl.’s Ex. 1, ECF No. 23-2.
These complaints were followed by events that affected Agent Dick personally and
professionally. At some point in June, Agent Dick learned that his wife had received from the
FBI unfavorable information about him that she then sought to use in divorce proceedings. See
1
The Court’s previous memorandum opinion contains a fuller discussion of the events leading
up to the BOLO as well as the BOLO’s contents. See Dick v. Holder, No. 13-cv-1060 (RC),
2014 WL 4450531, at *1–2 (D.D.C. Sept. 10, 2014) (ECF No. 29).
First Am. Compl. ¶ 116. On June 18, 2013, Agent Dick received from the FBI Health Unit a
notice requiring him to complete a fitness for duty examination. See id. ¶¶ 117, 122–24. On
June 19, 2013, Agent Dick was allegedly suspended indefinitely without pay, pending the FBI’s
review of whether his conduct posed a security threat. See id. ¶¶ 215–16, 223. After Byrnes
objected to the fitness for duty examination requirement, Agent Dick subsequently appeared for
the examination but refused to sign an informed consent agreement and release. See id. ¶¶ 125–
30. Ultimately, on December 5, 2013, he completed the examination. See id. ¶ 135. Agent Dick
has neither received a copy of his examination results nor been reinstated. See id. ¶ 138.
On June 21, 2013, Agent Dick sent a letter to FBI Equal Employment Opportunity
(“EEO”) Counselor M. Drew Crislip (“Crislip”) complaining of the FBI’s medical inquiries.
The letter bore the subject “Formal Equal Employment Opportunity (EEO) complaint by SSA
Michael Gerald Dick,” and asserted that because the FBI had ordered the fitness for duty
examination on the basis of a perceived mental disability, the examination violated the
Rehabilitation Act. See First Am. Compl. ¶ 140; Dick letter of June 21, 2013, Pl.’s Ex. 3, ECF
No. 23-4. The letter requested that the examination be cancelled and that his records be kept in
confidence, and also sought counseling from Crislip. See Dick letter of June 21, 2013, Pl.’s
Ex. 3. On June 26, 2013, Crislip interviewed Agent Dick, who was accompanied by Byrnes.
See Report of Counseling, Defs.’ Ex. A, ECF No. 21-1. During their conversation, Agent Dick
alleged that he had suffered discrimination on the basis of age and mental handicap, as well as
retaliation on account of his “prior issues with management & successful Merit Systems
Protection Board case against [the FBI].” Id.On July 2, 2013, after informal efforts to resolve the dispute proved unfruitful, Crislip
issued Agent Dick a notice of his right to file a formal complaint. See id. Accordingly, on July
8, 2013, Agent Dick filed a formal EEO charge of discrimination. See generally Complaint of
Discrimination, Defs.’ Ex. B, ECF No. 21-2. In indicating the bases for alleged discrimination,
he checked the choices for “age” and “reprisal,” but not “disability.” Id. In the explanation
fields, Agent Dick wrote that he “invoke[d] the anti-retaliation provision and substantive
protections of Federal EEO law” and alleged that the FBI had committed “acts of retaliation and
reprisal over the past several years” and was “trying to force [him] out because of [his] age.” Id.He further challenged the FBI’s issuance of the BOLO, the mandatory fitness for duty
examination, a “10 year internal affairs investigation,” and the revocation of his security
clearance. Id. In the package containing his formal EEO charge, Agent Dick enclosed a copy of
his initial letter to Crislip. See Dick Aff. ¶¶ 2, 8, Pl.’s Ex. 2, ECF No. 23-3.
On October 23, 2013, FBI EEO Officer Kevin M. Walker (“Walker”) sent Byrnes a letter
advising him that the FBI had begun to process Agent Dick’s EEO charge. See generally Walker
letter of Oct. 23, 2013, Defs.’ Ex. C, ECF No. 21-3. In his letter, Walker stated that the FBI had
accepted for investigation four claims of age discrimination, based respectively on the discrete
acts of (1) the FBI Health Services Unit’s response to Agent Dick’s May 2013 injury; (2) the
BOLO; (3) the June 18, 2013, letter directing him to complete a fitness for duty examination; and
(4) the June 19, 2013, letter suspending him from duty without pay. See id. at 2. Walker’s letter
made no mention of any claims of discrete-act or hostile work environment discrimination under
the Rehabilitation Act, or hostile work environment discrimination under the ADEA. See
generally id. Walker also explained that the FBI was dismissing the “reprisal” claim for failure
to state a claim, on the grounds that Agent Dick had not “allege[d] that he previously engaged in
. . . protected activity prior to the occurrence of” the alleged retaliation. Id. (citing 29 C.F.R.
§ 1614.107(a)(1) (mandating agency dismissal for failure to state a claim)). The letter directed
Byrnes to respond within fifteen days of his receipt of the letter if Agent Dick “disagree[d] with
[Walker’s] decision not to accept the basis of reprisal” or “believe[d] that the basis or the
allegations described in his EEO complaint has not been properly identified for investigation . . .
.” Id. at 3.
Walker’s letter further explained that the dismissal of Agent Dick’s “reprisal” claim “may
be appealed solely through the procedures described” in the letter. Id. The letter explained that
if he did not receive the Report of Investigation within 180 days following the filing of his
formal charge, Agent Dick could request a hearing before an administrative judge. See id. at 3–
4. 2 If the administrative judge were to disagree with the “reasons for dismissal,” “the entire EEO
complaint—or all of the portions not meeting the standards for dismissal—w[ould] continue in
the hearing process.” See id. at 4. 3 The administrative judge’s “decision on the dismissal” could
be appealed “by either party after the final agency action is taken on the complaint.” Id. 4
Walker’s letter further explained that Agent Dick “also has the right to file a civil action . . . after
180 days from the date of filing the complaint if an appeal has not been filed and final action has
not been taken[.]” Id. 5
Walker never received a response from Byrnes or Dick concerning either the dismissed
reprisal claim or the claims identified for investigation. See Trent Decl. ¶¶ 5, 6, ECF No. 21-4.
January 5, 2014, marked the passage of 180 days after Agent Dick filed his charge, and the FBI
had not taken final action. See First Am. Compl. ¶¶ 141, 146. Agent Dick neither requested a
hearing nor amended his charge to elaborate on his reprisal claim. 6
2
See 29 C.F.R. §§ 1614.107(b), 1614.108(f), (h).
3
See 29 C.F.R. § 1614.107(b).
4
See 29 C.F.R. §§ 1614.107(b), 1614.110(a), 1614.401.
5
See 29 C.F.R. § 1614.407(b).
6
See 29 C.F.R. § 1614.106(d).
Instead, in February 2014, Agent Dick filed his first amended complaint, which asserts
discrimination claims under the Rehabilitation Act and the ADEA based on discrete acts, a
hostile work environment, and retaliation. See First Am. Compl. ¶¶ 176–251. The complaint
further alleges that Agent Dick exhausted administrative remedies for all of these claims because
the FBI had not taken final agency action within the 180-day investigation period. See id.
¶¶ 141, 146. After February 2014, FBI officials allegedly attempted to interfere with Agent
Dick’s right to counsel by making certain threats and intimidating his attorney, see id. ¶¶ 225–
30, and the agency is now allegedly monitoring Agent Dick and his communications with
counsel, see id. ¶ 237.
In their supplemental motion, Defendants move to dismiss or for partial summary
judgment on most of the Rehabilitation Act and ADEA claims. See Mem. Supp. Defs.’ Suppl.
Mot. Dismiss 2, ECF No. 21. They do not, however, presently seek dismissal or summary
judgment on Agent Dick’s discrete-act age discrimination claims asserted in Count Ten. Id. at 2
n.3.
III. LEGAL STANDARDS
A. Rule 12(b)(1)
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994). Thus, to survive a Rule 12(b)(1) motion to dismiss, a plaintiff bears the burden of
establishing that a court has subject-matter jurisdiction over his claim. See Moms Against
Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether jurisdiction exists,
a court may “consider the complaint supplemented by undisputed facts evidenced in the record,
or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations
omitted).
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint
must contain sufficient factual allegations, accepted as true, to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility 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). Although a court generally cannot consider matters beyond the pleadings at the
motion-to-dismiss stage, it may consider “documents attached as exhibits or incorporated by
reference in the complaint, or documents upon which the plaintiff’s complaint necessarily relies
even if the document is produced not by the plaintiff in the complaint but by the defendant in a
motion to dismiss[.]” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119
(D.D.C. 2011) (internal citations and quotation marks omitted).
C. Rule 56
A court may grant summary judgment 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). A “material” fact is one capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-
movant. See Scott v. Harris, 550 U.S. 372, 380 (2007).
IV. ANALYSIS
In his first amended complaint, Agent Dick asserts several claims under the
Rehabilitation Act and the ADEA, which prohibit discrimination based on disability and age,
respectively. 7 The Rehabilitation Act “forbids federal agencies from engaging in any
discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA).” Solomon v.
Vilsack, 628 F.3d 555, 560 (D.C. Cir. 2010); see also 29 U.S.C. § 791(g). Discriminatory acts
prohibited by the ADA include “denying employment opportunities to . . . [an] employee who is
an otherwise qualified individual with a disability” and “using . . . employment tests . . . that
screen out or tend to screen out an individual with a disability,” unless the tests are “shown to be
job-related for the position in question and . . . consistent with business necessity.” 42 U.S.C.
§ 12112(b)(5)(B), (b)(6). The ADEA makes it unlawful for an employer to discriminate against
an individual “because of such individual’s age.” 29 U.S.C. § 623(a)(1), (2). Such
discrimination includes “limit[ing] . . . employees in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect his status as an
employee . . . .” Id.The Rehabilitation Act and ADEA also forbid retaliation against employees who
complain of discrimination prohibited by those statutes. See 42 U.S.C. § 12203 (ADA anti-
7
Counts One and Two of the first amended complaint reassert the original complaint’s claims
for violations of the Privacy Act, 5 U.S.C. § 552a. See First Am. Compl. ¶¶ 157–75. When the
first amended complaint was filed, the parties had already briefed Defendants’ motion to dismiss
the original complaint’s Privacy Act claims, and the parties agreed that because the new
complaint “left intact” those claims, the pending motion was not rendered moot. See Dick, 2014
WL 4450531, at *1 n.1. The Court subsequently granted Defendants’ motion to dismiss the
Privacy Act claims. See generally id. For the reasons given in the Court’s prior memorandum
opinion, the Court now dismisses the Privacy Act claims in Counts One and Two of the first
amended complaint. Accordingly, in this memorandum opinion, the Court analyzes only the
Counts asserting Rehabilitation Act and ADEA claims addressed in Defendants’ supplemental
motion.
retaliation provision, applicable to Rehabilitation Act retaliation claims by virtue of 29 U.S.C.
§ 791(g)); 29 U.S.C. § 623(d) (ADEA anti-retaliation provision). To establish a prima facie case
of retaliation, a plaintiff must show that (1) he engaged in statutorily protected activity; (2) he
suffered a materially adverse action by his employer; and (3) a causal link connects the two. See
Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014) (Rehabilitation Act); Jones v. Bernanke, 557
F.3d 670, 677 (D.C. Cir. 2009) (ADEA).
A federal agency employee who asserts Rehabilitation Act and ADEA claims against his
employer must “initiate his . . . complaint with the agency.” Kizas v. Webster, 707 F.2d 524, 544
(D.C. Cir. 1983). Under Equal Employment Opportunity Commission (“EEOC”) regulations,
only after notifying the agency’s EEO office, filing a formal charge with the agency, and
allowing the agency time to resolve the charge, can the employee file a civil action in federal
district court. See 29 C.F.R. §§ 1614.105, 1614.106, 1614.108, 1614.407. This procedure
“vest[s] in the federal agencies and officials engaged in hiring and promoting personnel ‘primary
responsibility’ for maintaining nondiscrimination in employment.” Kizas, 707 F.2d at 544(citation omitted) (discussing same administrative procedures for federal employee complaints
under Title VII).
“A failure to exhaust administrative remedies for Rehabilitation Act claims is a
jurisdictional defect . . . .” Mahoney v. Donovan, 824 F. Supp. 2d 49, 58 (D.D.C. 2011) (citing
Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006)). 8 Because exhaustion is a jurisdictional
8
Spinelli’s holding that exhaustion is jurisdictional under the Rehabilitation Act comes into
tension with the Supreme Court’s decision in Arbaugh, which explained that without a clear
statement in the statute labeling a limitation as jurisdictional, courts should presume that such
limitation is not jurisdictional. See Arbaugh v. Y & H Corp., 546 U.S. 500, 515–16 (2006).
Indeed, the D.C. Circuit more recently relied on Arbaugh in holding that exhaustion is not
jurisdictional under Title VII. See Artis v. Bernanke, 630 F.3d 1031, 1034 (D.C. Cir. 2011). But
because Spinelli was decided in May 2006, after Arbaugh was issued in February 2006, and
requirement, the plaintiff bears the burden to prove that he has exhausted his Rehabilitation Act
claim. Id. By contrast, under the ADEA, failure to exhaust is an affirmative defense. See Koch
v. Schapiro, 699 F. Supp. 2d 3, 12 (D.D.C. 2010) (citing Rann v. Chao, 346 F.3d 192, 194–95
(D.C. Cir. 2003)). Accordingly, the defendant bears the burden to prove that the plaintiff has
failed to exhaust his ADEA claim. See id.For exhaustion purposes, the EEO charge encompasses claims that are “like or
reasonably related to the allegations of the charge and growing out of such allegations.” Park v.
Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citation omitted) (discussing scope of Title
VII administrative claim). To be sufficiently related in this manner, a claim “must arise from
‘the administrative investigation that can reasonably be expected to follow the charge of
discrimination.’” Id. (citation omitted). The “like or reasonably related” test balances two
competing concerns. On the one hand, “[t]he purpose of the [exhaustion] doctrine is to afford
the agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening
the courts.” Wilson v. Peña, 79 F.3d 154, 165 (D.C. Cir. 1996); see also Brown v. Marsh, 777
F.2d 8, 15 (D.C. Cir. 1985) (describing “exhaustion doctrine’s purpose” as “giving the agency
notice of a claim and opportunity to handle it internally”). On the other hand, because courts
must ensure that remedies provided by federal employment discrimination law are “accessible to
individuals untrained in negotiating procedural labyrinths . . .[,] the strictures of common law
pleading have no place in a scheme largely dependent upon self-service in drawing up
administrative charges.” Brown, 777 F.2d at 14 (internal quotation marks and citations omitted)
(discussion Title VII exhaustion); accord Lyles v. District of Columbia, 777 F. Supp. 2d 128, 134
because it has not been withdrawn or overruled, this Court is still bound by its holding that
exhaustion is jurisdictional under the Rehabilitation Act. See Cobell v. Salazar, 816 F. Supp. 2d
10, 15 (D.D.C. 2011) (citing Brewster v. C.I.R., 607 F.2d 1369, 1373 (D.C. Cir. 1979) (per
curiam)).
(D.D.C. 2011). Accordingly, the fact that a plaintiff presents a claim “with greater specificity” in
court than he did before the agency cannot alone foreclose a finding of exhaustion. Lyles, 777 F.
Supp. 2d at 134 (citation omitted).
A. Exhaustion of Administrative Remedies
Defendants contend that Agent Dick has failed to exhaust his claims for discrete-act and
hostile work environment discrimination under the Rehabilitation Act, his claim for hostile work
environment under the ADEA, and his claims for retaliation under both statutes. For the reasons
given below, the Court agrees with Defendants as to the Rehabilitation Act discrete-act and
hostile work environment claims and the ADEA hostile work environment claim. The Court
concludes, however, that Agent Dick properly exhausted his retaliation claims under the
Rehabilitation Act and the ADEA.
1. Discrete Discriminatory Acts and Hostile Work Environment under the Rehabilitation
Act (Counts Three, Four, Five, Six, Eight, and Ten)
The Court first considers whether Agent Dick has shown that he exhausted his claims for
discrete-act discrimination and hostile work environment under the Rehabilitation Act. Agent
Dick alleges several discrete discriminatory acts—the BOLO issuance (Count Five), the
improper collection and disclosure of confidential information related to the fitness for duty
examination (Count Four), the fitness for duty examination itself (Count Three), suspension
without pay (Count Six), the failure to disclose to him the fitness for duty examination results
(Count Eight), and interference with his right to counsel and ongoing monitoring of him and his
communications with counsel (Counts Eight and Ten). See First Am. Compl. ¶¶ 176–219, 222–
37. Count Ten further alleges that these acts cumulatively constituted a hostile work
environment. See id. ¶¶ 233–37; see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
115 (2002) (distinguishing hostile work environment claims from those based on discrete acts). 9
The Court concludes that Agent Dick has not exhausted administrative remedies as to his
Rehabilitation Act discrete-act and hostile work environment discrimination claims because he
failed to challenge the FBI’s reasonable omission of these claims from the scope of the EEO
investigation. As a preliminary matter, Agent Dick does not dispute that his formal EEO charge
made no mention of any disability discrimination claims based either on discrete acts or a hostile
work environment. In the formal charge, he asserted claims of discrimination based only on
“age” and “reprisal”; he did not check “disability.” See Complaint of Discrimination, Defs.’ Ex.
B. Nor do his explanations in the charge allege that any specific discriminatory act or hostile
work environment was premised on his actual or perceived disability. See id. Lastly, the age
discrimination and retaliation claims in Agent Dick’s EEO charge cannot serve to exhaust his
disability-related claims because the theories alleged are entirely distinct. Cf. Bowe-Connor v.
Shinseki, 923 F. Supp. 2d 1, 7 (D.D.C. 2013) (dismissing claim of national origin discrimination
for failure to exhaust where EEO charge alleged only age and gender discrimination); Nyunt v.
Tomlinson, 543 F. Supp. 2d 25, 35 (D.D.C. 2008) (dismissing race discrimination claim for
failure to exhaust where EEO charge alleged only national origin discrimination).
Nor can Agent Dick rely on the fact that he informally raised a Rehabilitation Act claim
before filing his formal EEO charge when he initially sought counseling from Crislip. To be
sure, Agent Dick’s initial letter to Crislip, styled as a “Formal Equal Employment Opportunity
(EEO) complaint,” expressly challenged the fitness for duty examination requirement as a
violation of the Rehabilitation Act, on the grounds that Agent Dick was treated adversely for his
9
Certain claims are duplicative, and the first amended complaint does not include a Count Nine.
perceived mental disability. See Dick letter of June 21, 2013, Pl.’s Ex. 3. But this informal
communication, standing alone, is insufficient. See Hamilton v. Geithner, 666 F.3d 1344, 1350
(D.C. Cir. 2012) (“Filing a formal complaint is a prerequisite to exhaustion . . . , so [plaintiff]
cannot rely on the EEO counseling report to establish exhaustion of a claim that he failed to
include in his formal complaint.” (internal citation omitted)).
The Court’s inquiry, however, does not end here. In his opposition and supporting
affidavit, Agent Dick contends for the first time that in the package containing his formal EEO
charge, he enclosed a copy of his initial letter to Crislip. See Pl.’s Mem. Opp’n 4 (¶ 18 of factual
statement); id. at 10–11; Dick Aff. ¶¶ 2, 8, Pl.’s Ex. 2. Explaining his reasons for enclosing the
letter rather than raising the disability discrimination claims in his formal charge, Agent Dick
avers that Crislip told him that he “did not need to allege the Rehabilitation Act [claim] on the
Form 201A [of the formal charge] as [he] had already done so.” Dick Aff. ¶ 8, Pl.’s Ex. 2. In
essence, Agent Dick claims that his formal EEO charge incorporated the Rehabilitation Act
claims asserted in his initial letter to Crislip.
The Court is wary of Agent Dick’s attempt to advance a jurisdictional allegation wholly
absent from his complaint. See District of Columbia v. Barrie, 741 F. Supp. 2d 250, 263 (D.D.C.
2010) (“[A] party may not amend its complaint or broaden its claims through summary judgment
briefing.”); Mahoney, 824 F. Supp. 2d at 58 (establishing Rehabilitation Act plaintiff’s burden to
meet jurisdictional exhaustion requirement); see also First Am. Compl. ¶¶ 139–43 (failing to
allege enclosure of letter to Crislip). Nonetheless, because Agent Dick has proffered an affidavit
supporting his allegation, and in the interests of judicial efficiency, the Court will assume the
truth of Agent Dick’s factual assertion that he enclosed his letter to Crislip with his EEO charge.
Anderson, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.”). 10
Even assuming this fact, the Court concludes that Agent Dick has not carried his burden
of demonstrating that he exhausted administrative remedies as to his Rehabilitation Act discrete-
act and hostile work environment claims. First, because Agent Dick failed to contest the absence
of those claims from Walker’s letter identifying claims for investigation, the claims could no
longer “arise from ‘the administrative investigation that can reasonably be expected to follow the
10
Defendants contend that the Court should disregard this factual allegation because it “lacks
any corroboration and is contradicted by all the available . . . evidence.” Defs.’ Reply Supp.
Suppl. Mot. Dismiss 7 (quoting Arrington v. United States, 473 F.3d 329, 343 (D.C. Cir. 2006)).
But Agent Dick’s assertion is not “contradicted” by any record evidence. Defendants proffer the
declaration of Granette Trent, the Acting Unit Chief of the FBI’s Office of Equal Employment
Opportunity Affairs (“OEEOA”). But Trent’s declaration is conspicuously silent on the question
of whether Agent Dick actually enclosed his letter to Crislip with his EEO charge. Trent avers
only that Agent Dick’s “formal” EEO charge made no mention of disability claims; that the FBI
did not accept such claims for investigation; and that Agent Dick “did not contact OEEOA to
assert any disability claim . . . at any time subsequent to the filing” of his EEO charge. Trent
Decl. ¶¶ 5, 6 (emphasis added). By his declaration, Crislip asserts that he did not advise Agent
Dick to omit his Rehabilitation Act claims from his EEO charge, but he says nothing about
whether Agent Dick enclosed the letter with his formal charge. See Crislip Decl. ¶ 5, Defs.’
Reply Ex. 1, ECF No. 27-1.
Likewise, Defendants’ arguments on reply leave untouched Agent Dick’s factual
allegation that he enclosed the letter to Crislip with his formal EEO charge. Defendants first
argue that no correspondence from Dick or Byrnes prior to submission of the formal EEO charge
constituted a formal EEO charge. See Defs.’ Reply Supp. Defs.’ Suppl. Mot. Dismiss 4–5. The
Court agrees, as already explained above, but this argument is of no consequence here.
Defendants further contend that Crislip did not actually advise Dick that he need not raise his
disability claim in his formal EEO charge. See id. at 5–6. This argument attacks the truth of
Agent Dick’s reasons for enclosing the letter to Crislip, but does not controvert the allegation
that he actually did so. Lastly, Defendants argue that even if Agent Dick’s allegations about
Crislip’s instructions are true, exhaustion is a jurisdictional requirement that cannot be waived.
See id. at 5. This proposition might be correct as a legal matter, but Agent Dick contends that the
jurisdictional exhaustion requirement was satisfied, not waived. See First Am. Compl. ¶ 141.
Lastly, in a footnote, Defendants assert that Crislip’s alleged instruction to Agent Dick
would be inadmissible hearsay. See Defs.’ Reply Supp. Defs.’ Suppl. Mot. Dismiss 6 n.3.
Defendants are mistaken: Agent Dick does not offer Crislip’s instruction for the “truth of the
matter asserted” therein (i.e., that Agent Dick in fact did not need to include his disability claims
in his EEO charge). Fed. R. Evid. 801(c)(2).
charge of discrimination.’” Park, 71 F.3d at 907 (citation omitted) (emphasis added). Agent
Dick does not dispute that his Rehabilitation Act claims were not among those claims identified
for investigation by Walker’s letter. See generally Walker letter of Oct. 23, 2013, Defs.’ Ex. C.
Nor does he genuinely dispute that Byrnes received Walker’s letter and that Byrnes failed to
contest the scope of the FBI’s proposed investigation within the allotted fifteen days. 11 Agent
Dick’s inaction thus precludes a finding that his EEO charge “could reasonably be expected upon
investigation to lead to” his Rehabilitation Act discrete-act and hostile work environment claims.
Park, 71 F.3d at 909.
Second, Agent Dick fails to offer any evidence supporting his allegation that the FBI
manipulated the system to create an exhaustion issue by “suppress[ing]” and intentionally
“ignor[ing]” his letter to Crislip containing the Rehabilitation Act claims. Pl.’s Mem. Opp’n 11.
11
To be sure, Walker’s letter was addressed to Byrnes rather than Dick himself. Both Dick and
Byrnes aver that they had no attorney-client relationship insofar as the EEO matter was
concerned, and that Crislip was aware of this fact. See Dick Aff. ¶¶ 6–7, Pl.’s Ex. 2; Byrnes Aff.
¶ 4, ECF No. 23-5. Agent Dick’s statement of facts explains that this absence of formal
representation explained why “[Byrnes] did not reply to . . . [Walker’s] letter regarding
processing of [Agent Dick’s] EEO complaint.” Pl.’s Mem. Opp’n 4. But even Byrnes states that
he “forwarded any inquiries from the EEO investigator to [Agent Dick].” Byrnes Aff. ¶ 5. The
Court further notes that because Walker’s letter was addressed to Byrnes, who in fact received
the letter, Byrnes’s contact information must have been supplied to Walker. See Walker letter of
Oct. 23, 2013, Defs.’ Ex. C. Moreover, it appears from the closing caption in the letter that a
copy of the letter was sent by “[c]ertified” mail to Agent Dick, who does not expressly deny
receipt. See id. Lastly, Agent Dick cannot disavow that he retained Byrnes for purposes of the
EEO charge, while also claiming that Byrnes’s earlier communications on his behalf
“unequivocally” raised his Rehabilitation Act claims. Pl.’s Mem. Opp’n 2, 3; see also Byrnes
letter of June 7, 2013, Pl.’s Ex. 1; Byrnes email of May 23, 2013, Comp. Ex. The closest Agent
Dick comes to denying that he received Walker’s letter is an assertion in his affidavit that “[a]t
no time following [his] submission [of the EEO charge] was [he] contacted by or asked to
provide a statement to any FBI investigator.” Dick Aff. ¶ 9, Pl.’s Ex. 2. This assertion does not
create a genuine dispute of material fact: Walker’s letter, addressed to Byrnes, is fully consistent
with Agent Dick’s assertion of the lack of direct “contac[t]” or request for any “statement.” Id.
At bottom, because Agent Dick’s evidence is insufficient to support a finding that he (or his
attorney Byrnes) had no knowledge of Walker’s letter, there is no genuine dispute of material
fact. See Scott, 550 U.S. at 380 (explaining that dispute is “genuine” if there is enough evidence
for a reasonable jury to return a verdict for the non-movant).
An agency may not unreasonably omit claims from investigations, in hopes that a complainant’s
tardy realization of the omission will constitute a failure to exhaust. Cf. Cheatham v. Holder,
935 F. Supp. 2d 225, 236 (D.D.C. 2013) (explaining that because “the investigation naturally and
necessarily was limited to those issues raised before the EEO Counselor,” the agency’s decision
not to identify and investigate other claims asserted in the formal charge, without any objection,
resulted in a failure to exhaust). But here, even if Agent Dick had enclosed his letter to Crislip,
the formal EEO charge neither explicitly incorporated the letter nor, as Agent Dick effectively
concedes, made any mention of discrete-act or hostile work environment Rehabilitation Act
claims. Thus, Agent Dick proffers no evidence that Walker’s omission of the Rehabilitation Act
claims was unreasonable. 12
The Court thus holds that where an agency reasonably fails to identify for investigation a
claim indirectly asserted in a plaintiff’s administrative charge, and where the plaintiff does not
timely object to this omission before the agency, the plaintiff cannot show that he has exhausted
administrative remedies as to this claim. See Park, 71 F.3d at 907. 13 Accordingly, the Court
12
The formal EEO charge does read: “I have presented to the FBI a detailed list of specific acts
of retaliation and reprisal over the past several years and asked for relief.” Complaint of
Discrimination, Defs.’ Ex. B. Even if the phrase “detailed list” can be construed to refer to the
letter to Crislip, the sentence does not expressly incorporate the letter’s claims into the formal
charge. And Walker may have reasonably concluded that the enclosed letter provided
background information, but that the claims set forth in the charge superseded or refined the
claims previously raised in the letter.
13
This rule not only follows from Park, but also finds support in decisions of this Court
concerning exhaustion under Title VII. See Cheatham, 935 F. Supp. 2d at 237 (holding that Title
VII plaintiff failed to exhaust two of four claims included in his formal EEO charge given that
agency declined to investigate those two claims and because, “throughout the investigation,” he
“never indicated that the investigation was narrower than his EEO complaint”); Green v. Small,
No. CIV.A. 05-1055 (ESH), 2006 WL 148740, at *6 (D.D.C. Jan. 19, 2006) (finding failure to
exhaust in part because Title VII plaintiff “made no attempt to augment the ‘accepted allegation’
or amend his [EEO charge] prior to the conclusion of the investigation” and had thus not
“diligently pursued” his claims); see also McKeithan v. Boarman, 803 F. Supp. 2d 63, 68
(D.D.C. 2011) (reviewing cases standing for proposition that “failure to respond to the framing
dismisses for lack of jurisdiction Counts Three, Four, Five, Six, Eight, and Ten insofar as they
allege that Agent Dick suffered discrete acts of discrimination and a hostile work environment
because of his disability, in violation of the Rehabilitation Act. See Mahoney, 824 F. Supp. 2d at
58.
2. Hostile Work Environment under the ADEA (Counts Ten and Eleven)
Incorporating the discrete-act discrimination allegations under the Rehabilitation Act,
Counts Ten and Eleven allege that Agent Dick also suffered a hostile work environment because
of his age, in violation of the ADEA. See First Am. Compl. ¶¶ 235, 238–51. As an affirmative
defense, Defendants argue that Agent Dick’s ADEA hostile work environment claim—like his
Rehabilitation Act hostile work environment claim—was not exhausted because Walker’s letter
did not identify the claim for investigation, and Agent Dick never responded to the letter. See
Mem. Supp. Defs.’ Suppl. Mot. Dismiss 13–14.
The Court agrees that Agent Dick has failed to exhaust his ADEA hostile work
environment claim. The EEO charge alleged discrete discriminatory acts—that the FBI issued
the BOLO, required a fitness for duty examination, pursued a “10 year internal affairs
investigation,” and revoked his security clearance—and stated an overarching claim that Agent
Dick was being “force[d] . . . out” on account of his age. Complaint of Discrimination, Defs.’
Ex. B. Although the allegations in Agent Dick’s EEO charge, taken together, could plausibly
have led to an investigation of an ADEA hostile work environment claim, see Park, 71 F.3d at
of the issue supports a finding that a plaintiff has failed to exhaust his administrative remedies
with respect to those claims not approved by the EEO” (internal quotation marks omitted)) aff’d
in part, No. 11-5247, 2012 WL 1450565 (D.C. Cir. Apr. 12, 2012) and aff’d sub nom.
McKeithan v. Vance-Cooks, 498 F. App’x 47 (D.C. Cir. 2013). To be sure, exhaustion is “not
jurisdictional” under Title VII, but this distinction counsels in favor of more vigilance when
inquiring into exhaustion under the Rehabilitation Act. Mahoney, 824 F. Supp. 2d at 58 (quoting
Artis, 630 F.3d at 1034 n.4).
909; see also Whorton v. Wash. Metro. Area Transit Auth., 924 F. Supp. 2d 334, 348 (D.D.C.
2013) (“[A] plaintiff need not use any magic words in a charge much less use the specific term
‘hostile work environment’ in order to properly exhaust such a claim.”), those allegations are not
sufficiently clear to lead necessarily to that conclusion.
Crucially, in any event, Walker’s letter of October 23, 2013, changes the analysis: The
letter explained that the FBI had accepted for investigation only discrete-act age discrimination
claims, with no mention of an ADEA hostile work environment claim. See Park, 71 F.3d at 909;
Mem. Supp. Suppl. Mot. Dismiss 13. At this point, it was incumbent upon Agent Dick to clarify
his imprecise allegations if he believed that the FBI had misinterpreted them. But like Agent
Dick’s Rehabilitation Act discrete-act and hostile work environment claims, his ADEA hostile
work environment claim was not identified by the FBI for investigation, and he did not object to
this omission. See supra Part IV.A.1. Moreover, Defendants have demonstrated that the
omission was reasonable, given the EEO charge’s lack of a clearer reference to a hostile work
environment claim. Because the ADEA hostile work environment claim cannot “arise from ‘the
administrative investigation that can reasonably be expected to follow the charge of
discrimination,’” the Court concludes that Agent Dick failed to exhaust administrative remedies
as to this claim. Park, 71 F.3d at 907 (citation omitted) (emphasis added).
The Court accordingly grants Defendants’ motion to dismiss Agent Dick’s claim in
Count Ten, reasserted in Count Eleven, that he suffered a hostile work environment because of
his age, in violation of the ADEA.
3. Retaliation under the Rehabilitation Act and the ADEA (Counts Three, Seven, Eight,
and Ten)
The Court now considers whether Agent Dick exhausted his retaliation claims under the
Rehabilitation Act and the ADEA. Agent Dick alleges that all discrete acts alleged to be
discriminatory under the Rehabilitation Act also constituted retaliation in violation of the
Rehabilitation Act and the ADEA—the BOLO issuance (Count Seven, First Am. Compl.
¶ 221) 14, the improper collection and disclosure of confidential information related to the fitness
for duty examination (Count Ten, id. ¶ 234, incorporating Count Four), the fitness for duty
examination itself (Counts Three, id. ¶ 186, and Seven, id. ¶ 221), suspension without pay
(Count Ten, id. ¶ 234, incorporating Count Six), the failure to disclose to him the fitness for duty
examination results (Count Eight, id. ¶¶ 230–31), and interference with his right to counsel and
ongoing monitoring of him and his communications with counsel (Counts Eight, id., and Ten, id.
¶ 237). See generally id. ¶¶ 233–37 (Count Ten alleging that all alleged discrimination
constitutes retaliation under both statutes).
In contending that Agent Dick failed to exhaust his retaliation claims, Defendants again
argue that Agent Dick did not respond to Walker’s October 23, 2013, letter. Mem. Supp. Defs.’
Suppl. Mot. Dismiss 15 (“[T]he EEO Office instructed Plaintiff’s counsel to advise in writing if
he disagreed with the FBI’s decision not to accept the reprisal claim, but Plaintiff did not submit
any response.”). But Defendants overlook an important distinction: The FBI did not omit the
“reprisal” claim from the investigation, but rather dismissed it for failure to state a claim. See
14
Count Seven’s heading suggests that the fitness for duty examination is the sole basis of the
retaliation claim asserted therein. However, the explanation of that Count asserts that Agent
Dick “made it clear he would challenge the BOLO as an act of retaliation and reprisal at the time
the Agency issued its demand for a mandatory fitness for duty examination.” First Am. Compl.
¶ 221. Out of caution, the Court construes Count Seven to allege two acts of retaliation—both
the BOLO issuance and the fitness for duty examination.
Walker letter of Oct. 23, 2013, Defs.’ Ex. C. For the reasons that follow, the Court concludes
that Agent Dick exhausted his Rehabilitation Act and ADEA retaliation claims. 15
Under the EEOC regulations, prior to a complainant’s request for a hearing, a federal
agency “shall dismiss” all or part of a discrimination charge on any number of several
enumerated grounds, including failure to state a claim. 29 C.F.R. § 1614.107(a)(1). A partial
dismissal of an employee’s discrimination charge—the dismissal of “some but not all” of the
claims in a charge—triggers a specific appeals procedure. Id. § 1614.107(b). If the agency fails
to complete its investigation within 180 days following the filing of the formal charge, the
complainant may request a hearing before an EEOC administrative judge, at which hearing the
partial dismissal is “reviewable.” Id. § 1614.107(b); see also id. § 1614.108(f), (h). This right to
review does not depend on whether a complainant “preserves” the issue by responding to an
initial partial dismissal. Once the agency takes final action either adopting or overruling the
initial partial dismissal, either party may file an administrative appeal to the EEOC. See id. §§
1604.107(b), 1614.110(a), 1614.401. Lastly, and crucially for this case, after 180 days following
the filing of an administrative charge, if the agency has not taken final action and no appeal has
been filed, the complainant can forgo a hearing and “is authorized under . . . the ADEA and the
Rehabilitation Act to file a civil action in an appropriate United States District Court[.]” Id.
§ 1614.407(b). 16 Thus, when the 180-day investigation period lapses, the plaintiff still has a
15
The burdens of proof fall differently on the parties because exhaustion is jurisdictional under
the Rehabilitation Act, while failure-to-exhaust is an affirmative defense under the ADEA. See
supra. But because the Court concludes that Agent Dick has carried his burden to prove
exhaustion of his Rehabilitation Act retaliation claim, and because the factual and legal analyses
governing exhaustion of Agent Dick’s Rehabilitation Act and ADEA retaliation claims are the
same, the Court also concludes that Defendants have not carried their burden to prove that Agent
Dick failed to exhaust his ADEA retaliation claim.
16
Regarding complaints under the ADEA, the regulations expressly provide that “administrative
remedies will be considered to be exhausted for purposes of filing a civil action [ . . . ] 180 days
right to have the partial dismissal reviewed. At this point, his choice to seek review in this Court
as permitted by the regulations, rather than with an administrative judge, does not extinguish the
dismissed claim.
Further guidance comes from Franklin v. Potter, in which this Court concluded that once
an agency issues a final decision incorporating an earlier partial dismissal, the complainant has
exhausted administrative remedies as to the dismissed claim, notwithstanding a failure to oppose
the dismissal before the agency. 600 F. Supp. 2d 38, 61–62 (D.D.C. 2009). Franklin, a U.S.
Postal Service employee, filed a formal EEO charge alleging gender- and disability-based
discrimination, including a claim for “hostile work environment harassment.” Id. at 56. The
Postal Service dismissed the harassment claim “because the facts alleged did not constitute a
hostile work environment.” Id. The agency’s final decision expressly “endorsed and
incorporated by reference” its earlier dismissal. Id. at 61. Subsequently in this Court, Franklin
asserted his hostile work environment claim. Concluding that Franklin exhausted this claim, the
Court first rejected the defendant’s argument that Franklin’s failure to “oppose the [a]gency’s
dismissal” of the claim constituted a failure to exhaust. Id. (citation omitted). The Court
reasoned that Franklin “could not have asked the EEOC or this Court to review a partial
dismissal of his complaint until the agency issued its final decision on the rest of the complaint.”
Id. Next, the Court concluded that after the final agency decision expressly endorsed the earlier
dismissal, Franklin “had fully exhausted his claims and had no obligation to pursue an
administrative appeal, because the regulations permitted him to file a civil action . . . .” Id.(citing 29 C.F.R. § 1614.407(a)).
after the filing of an individual complaint if the agency has not taken final action and the
individual has not filed an appeal . . . .” 29 C.F.R. § 1614.201(c) (emphasis added).
To be sure, a claim cannot be exhausted by any partial dismissal: An implied premise of
Franklin is that the dismissed claim was “like or reasonably related” to the claim asserted in
court. Park, 71 F.3d at 907 (citation omitted). Park’s “like or reasonably related” requirement
ensures that the agency has both notice of and an opportunity to investigate claims, see Wilson,
79 F.3d at 165; Brown, 777 F.2d at 15, protecting against the risk that a plaintiff circumvents the
exhaustion doctrine by asserting in court a claim wholly unrelated to the dismissed claim. 17
Reading the EEOC regulations, Franklin, and Park together, this Court concludes that
where an agency dismisses some but not all claims in an administrative charge and does not take
final action within the 180-day investigation period, the complainant exhausts administrative
remedies as to the dismissed claims, so long as they are “like and reasonably related” to the
claims asserted in court, notwithstanding his failure to oppose the dismissal before the agency.
29 C.F.R. §§ 1614.107(b), 1614.407(b); Park, 71 F.3d at 907; Franklin, 600 F. Supp. 2d at 61.
Applying this test to the instant facts, the Court holds that Agent Dick exhausted
administrative remedies as to his Rehabilitation Act and ADEA retaliation claims. Under the
EEOC regulations, Agent Dick had the right to bring his retaliation claims to court: He alleges,
without response from Defendants, that following the initial partial dismissal of his “reprisal”
claim, the FBI failed to take final agency action within the 180-day investigation period. See
First Am. Compl. ¶¶ 141, 146. Moreover, the “reprisal” claim in Agent Dick’s EEO charge was
“like or reasonably related” to the Rehabilitation Act and ADEA retaliation claims asserted in
this Court. Park, 71 F.3d at 907. The “reprisal” claim was buttressed by factual allegations in
17
Of course, this risk inheres not only in partial dismissals, but also in full dismissals: If an
agency dismisses all claims in a complaint under § 1614.107, the agency “shall take final action
by issuing a final decision” that includes “the rationale for dismissing any claims in the
complaint . . . .” 29 C.F.R. § 1614.110(b). Such final action enables the complainant to proceed
to court within 90 days. See id. § 1614.407(a).
Agent Dick’s letter to Crislip that the fitness for duty examination was ordered as a result of his
“protestations of harassment and abuse generally” and his “recent response to the failure of the
FBI to treat [him] for a work related injury.” Dick letter of June 21, 2013, Pl.’s Ex. 3. In an
exhaustion analysis, “the strictures of common law pleading have no place in a scheme largely
dependent upon self-service in drawing up administrative charges.” Brown, 777 F.2d at 14(internal quotation marks and citations omitted). For the same reason, the fact that Agent Dick
presented his retaliation claims “with greater specificity” in this Court than he did in proceedings
before the FBI does not foreclose a finding of exhaustion. Lyles, 777 F. Supp. 2d at 134 (citation
omitted). 18
Like Franklin’s failure to “oppose the . . . dismissal,” Agent Dick’s failure to respond to
the FBI’s partial dismissal of his “reprisal” claim did not nullify his right under the regulations to
file a civil action. Franklin, 600 F. Supp. 2d at 61. Although Agent Dick could have taken
certain actions in administrative proceedings to preserve more clearly his dismissed claim, 19
nowhere do the regulations require Agent Dick to do so in order to exhaust the claim. To the
18
Moreover, the fact that the FBI accepted for investigation a claim absent from both the formal
EEO charge and the allegedly appended letter to Crislip demonstrates that even the FBI did not
consider itself limited by the EEO charge in defining the scope of its investigation. See Walker
letter of Oct. 23, 2013, Defs.’ Ex. C (accepting claim that Agent Dick was suspended indefinitely
without pay).
19
Following the partial dismissal of his “reprisal” claim, he could have requested a hearing after
180 days or awaited final agency action and filed an administrative appeal. See 29 C.F.R.
§§ 1614.108(f), (h), 1614.401(a). Besides directly challenging the dismissal, Agent Dick could
have amended his complaint, see id. § 1614.106(d), or responded to Walker’s letter by providing
more detailed factual allegations supporting his “reprisal” claim. The Court additionally
observes that the fifteen-day response window provided by Walker’s letter does not seem to have
a basis in the regulations. See Walker letter of Oct. 23, 2013 at 2, Defs.’ Ex. C. Compare 29
C.F.R. § 1614.107(a)(1) (dismissal for failure to state a claim), with id. § 1614.107(a)(7)
(dismissal for failure to respond within fifteen days to “written request to provide relevant
information or otherwise proceed with the complaint”). In any event, neither Walker’s letter nor
the regulations provide that a failure to respond to an initial notice of dismissal extinguishes
other avenues for redress—such as filing a civil suit after the 180-day investigation period.
contrary, he was entitled to wait 180 days and, in the absence of final agency action, to bring his
claims to this Court, as he ultimately did. See 29 C.F.R. § 1614.407(b). 20 Nor can Agent Dick’s
failure to challenge the dismissal be equated with a failure to “cooperat[e]” with the FBI’s EEO
investigation. Wilson, 79 F.3d at 166 (“Once a complainant files a complaint . . . and cooperates
with the agency . . . for 180 days, he is not required to take any further action to exhaust his
administrative remedies.” (emphasis added)). Here, the FBI never requested any information
from Agent Dick that it considered necessary to its investigation of the “reprisal” claim. Cf. 29
C.F.R. § 1614.107(a)(7); see Wilson, 79 F.3d at 166 (explaining that plaintiff exhausted
administrative appeal where EEOC “did not request any information from him” during its
investigation). In sum, in accordance with the EEOC regulations, Walker’s letter provided
Agent Dick with various options for challenging the dismissal, see Walker letter of Oct. 23, 2013
at 4, Defs.’ Ex. C, and he simply opted for one of them—filing a civil action in court.
Agencies should not misconstrue this opinion to mean that dismissal of a claim forecloses
a failure-to-exhaust defense, while wholly ignoring a claim without objection from the
complainant preserves such a defense. First, as explained above, the Court holds only that the
FBI’s reasonable omission from its investigation of indirectly stated or imprecisely defined
claims, without objection from Agent Dick, resulted in a failure to exhaust. See supra Part
20
In the absence of a relevant regulation, the Court declines to impose a “reasonable efforts”
requirement on complainants whose claims are partially dismissed. But see Stewart v. White,
No. 13-1125 (CKK), 2014 WL 3747664, at *6 (D.D.C. July 31, 2014) (concluding that, under
Park, a federal employee did not exhaust remedies as to partially dismissed claims where no
evidence showed that she “attempted to clarify her claims at any point during the agency’s
investigation”); Burkes v. Holder, 953 F. Supp. 2d 167, 171, 174 (D.D.C. 2013) (holding, where
agency decided not to accept a claim for investigation for “fail[ure] to state a claim,” that Title
VII plaintiff failed to exhaust given lack of evidence that he “challenged the agency’s decision”
or that he “filed any additional complaints”). By this approach, the Court also avoids myriad
administrability problems inherent in determining the nature and degree of response from the
complainant that would suffice to constitute exhaustion.
IV.A.1. Second, a dismissal forecloses a failure-to-exhaust defense only insofar as the dismissed
claim is “like or reasonably related” to the claim asserted in court. Park, 71 F.3d at 907.
Notwithstanding the narrowness of today’s holding, the Court emphasizes the
fundamental distinction between a dismissal and a reasonable omission of a claim without
objection, viewed through the policies animating the exhaustion doctrine. The unchallenged
omission is an indication that the agency neither has considered nor will consider the omitted
claim; courts thus presume that the agency has not received “notice of a claim and [an]
opportunity to handle it internally.” Brown, 777 F.2d at 15. By contrast, a dismissal
demonstrates that the agency has in fact had “an opportunity to resolve the matter internally . . .
.” Wilson, 79 F.3d at 165. Before deciding to dismiss a claim, the agency must identify it in the
charge, consider the elements of the claim, and determine whether the charge has alleged each of
the elements. See 29 C.F.R. § 1614.107(a)(1) (mandating pre-hearing dismissal for failure to
state a claim). While this work might not be fact-intensive, a dismissal marks the culmination of
the agency’s initial consideration of the claim, not a lack of consideration altogether.
One final issue bears on the exhaustion of Agent Dick’s retaliation claims: Here, because
certain acts of alleged retaliation occurred after Agent Dick’s EEO charge—the fitness for duty
examination, the failure to disclose the examination results to him, the interference with his right
to counsel, and the ongoing monitoring of him and his communications with counsel—this case
potentially presents the question of whether Agent Dick had to separately exhaust administrative
remedies as to these post-charge events. As understood by Defendants, Agent Dick’s opposition
asserts that he did not need to exhaust any retaliation claims based on post-charge events
“reasonably related” to properly asserted claims in the charge. See Pl.’s Mem. Opp’n 11; Defs.’
Reply Supp. Defs.’ Suppl. Mot. Dismiss 9; see also Wedow v. City of Kansas City, Mo., 442 F.3d
661, 674 (8th Cir. 2006) (holding that where an EEO charge had alleged “ongoing and
continuing” retaliation for sex discrimination complaints, the plaintiff did not need to separately
exhaust claims alleging post-charge retaliation of “identical character,” because such claims
could be reasonably expected to grow out of the agency’s investigation of the charge); accord
Jones v. Bernanke, 685 F. Supp. 2d 31, 37 (D.D.C. 2010). 21 But Defendants expressly decline to
address this issue because they claim (incorrectly) that all alleged retaliation occurred before
Agent Dick initiated EEO counseling. See Defs.’ Reply Supp. Defs.’ Suppl. Mot. Dismiss 9.
Accordingly, in the absence of any briefing, the Court does not dismiss Agent Dick’s claims
alleging post-charge retaliation for failure to exhaust.
Because Agent Dick has demonstrated that he exhausted administrative remedies as to his
retaliation claims under both the Rehabilitation Act and the ADEA, respectively, the Court has
subject-matter jurisdiction over the former claims, and Defendants cannot establish their
affirmative failure-to-exhaust defense as to the latter. Accordingly, the Court will not dismiss
the retaliation claims asserted in Counts Three, Seven, Eight, and Ten, for failure to exhaust
administrative remedies.
B. Failure to State Retaliation Claims under the Rehabilitation Act and the ADEA (Counts
Three, Seven, and Ten)
In the alternative, Defendants move to dismiss all retaliation claims for failure to state a
claim, on the basis that Agent Dick does not allege any “statutorily protected activity” preceding
21
The D.C. Circuit acknowledged the Eighth Circuit’s approach in Wedow but declined to
consider the question addressed therein. See Weber v. Battista, 494 F.3d 179, 183–84 (D.C. Cir.
2007); accord Pierson v. Wash. Metro. Area Transit Auth., 821 F. Supp. 2d 360, 365–66 (D.D.C.
2011).
the alleged retaliation. See Solomon, 763 F.3d at 14 (Rehabilitation Act); Jones, 557 F.3d at 677(ADEA); Mem. Supp. Defs.’ Suppl. Mot. Dismiss 14–15.
As to the Rehabilitation Act retaliation claim, the Court grants in part Defendants’ motion
to dismiss. The Court agrees that Agent Dick has not stated a claim that the May 8, 2013, BOLO
was retaliatory, given that he does not allege any pre-BOLO activity protected by the
Rehabilitation Act. See Solomon, 763 F.3d at 14. 22 But the Court denies the motion as to other
instances of retaliation. The Rehabilitation Act prohibits retaliation for any “oppos[ition]” to
alleged disability discrimination; such opposition need not be the filing of a formal EEO charge.
42 U.S.C. § 12203. 23 The exhibits to the first amended complaint show that as early as late May
2013, Agent Dick, through Byrnes, alleged disability-based discrimination in communications
with FBI personnel—even expressly invoking the Rehabilitation Act. 24 On May 23, 2013,
Byrnes informed an FBI official by email that Agent Dick “is invoking all the protections of the .
. . Rehabilitation Act” and “is asserting that you are perceiving him as disabled and have tried to
revoke his clearance based on the perception that he is mentally unfit.” Byrnes email of May 23,
2013, Compl. Ex. On June 7, 2013, Byrnes advanced similar claims in a letter to the FBI human
resources official whom Agent Dick had criticized. See Byrnes letter of June 7, 2013, Pl.’s
Ex. 1. Defendants claim that these communications were not protected because they were “not
22
During his initial counseling session, Agent Dick suggested that the BOLO and other
retaliation was caused by much earlier activity—his “prior issues with management & successful
Merit Systems Protection Board case against [the FBI].” Report of Counseling, Defs.’ Ex. A.
But the first amended complaint fails to allege that any of these earlier disputes involved Agent
Dick’s opposition to disability (or age) discrimination. See First Am. Compl. ¶¶ 1–90.
23
See also Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 16 (D.C. Cir. 2009)
(explaining that the Rehabilitation Act, via the ADA, “bars retaliation against an individual for
making a charge under or opposing any practice made unlawful by that Act” (emphasis added)).
24
Although the main body of the complaint does not mention these communications, the Court
may consider “documents attached as exhibits or incorporated by reference in the complaint . . .
.” Ward, 768 F. Supp. 2d at 119 (citation omitted).
made to anyone involved in the EEO process” and “did not raise any concern of discrimination,”
but these assertions are legally and factually incorrect, respectively. Defs.’ Reply Supp. Defs.’
Suppl. Mot. Dismiss 8 (discussing Byrnes letter of June 7, 2013, Pl.’s Ex. 1). 25 Because
Defendants do not assert any other basis for dismissal of Agent Dick’s Rehabilitation Act
retaliation claim (e.g., lack of causation, lack of materially adverse retaliation) the court denies
the motion to dismiss as to all alleged retaliation that followed Byrnes’s communications—the
improper collection and disclosure of confidential information (June 2013), 26 the directive to
complete the fitness for duty examination (June 18, 2013), the suspension without pay (June 19,
2013), the failure to disclose to Agent Dick the examination results (after December 2013), the
interference with his right to counsel (after February 2014), and the ongoing monitoring of him
and his communications with counsel.
Similarly, the Court dismisses the ADEA retaliation claim as to certain alleged instances
of retaliation, but not as to others. The first amended complaint fails to allege plausibly that
Agent Dick engaged in any “statutorily protected activity” under the ADEA before either the
BOLO issuance (May 8, 2013), his receipt of the notice requiring the fitness for duty
examination (June 18, 2013), or his suspension without pay (June 19, 2013). But Defendants do
not dispute that Agent Dick asserted age discrimination claims on June 26, 2013, during his
25
The Court notes that Byrnes’s letter of June 7, 2013, attached to Agent Dick’s opposition, does
not appear to be among the “documents attached as exhibits or incorporated by reference in the
complaint . . . .” Ward, 768 F. Supp. 2d at 119 (citation omitted). Nonetheless, the Court
addresses the letter given that Defendants discuss it on reply. In any event, even if the Court
were to decline to consider the June 7 letter, its analysis would be unchanged because Byrnes’s
earlier email of May 23, 2013, attached as an exhibit to the first amended complaint, included
Rehabilitation Act claims similar to those contained in the June 7 letter. See Byrnes email of
May 23, 2013, Compl. Ex.
26
The first amended complaint alleges that at some point in “June 2013,” the FBI disclosed to
Agent Dick’s wife information about the requirement that he complete the fitness for duty
examination. See First Am. Compl. ¶ 116.
counseling session with Crislip. See Report of Counseling, Defs.’ Ex. A. 27 Nor do they contend
that these statements were not protected by the ADEA. Assuming the truth of the allegations in
the complaint, the Court concludes that other retaliatory acts occurred after the counseling
session—the improper collection and disclosure of confidential information (June 2013), the
fitness for duty examination (December 2013), 28 the FBI’s failure to disclose its results (after
December 2013), the interference with Agent Dick’s right to counsel (after February 2014), and
the ongoing monitoring of him and his communications with his attorney. Because Defendants
fail to address these alleged instances of retaliation, the Court will deny their motion to dismiss
as to these allegations.
Accordingly, the Court grants Defendants’ motion to dismiss Counts Three, Seven, and
Ten as to Agent Dick’s claims that Defendants retaliated against him by issuing the BOLO, in
violation of the Rehabilitation Act and the ADEA, and by initially ordering the fitness for duty
27
As explained above, Agent Dick, through Byrnes, complained of alleged discrimination based
on his perceived mental disability, in violation of the Rehabilitation Act. But Byrnes’s
communications make no mention of any alleged age discrimination in violation of the ADEA.
See Byrnes email of May 23, 2013, Compl. Ex.; Byrnes letter of June 7, 2013, Pl.’s Ex. 1.
28
The first amended complaint does not expressly disaggregate the notice (received on June 18,
2013) from the examination itself (conducted in December 2013). See, e.g., First Am. Compl.
¶ 186 (“[T]he FBI is using mandatory psychiatric fitness for duty examinations as a retaliatory
and disciplinary tool.”) For the sake of completeness, the Court analyzes them separately. The
Court notes, however, that it is unclear whether the examination, the failure to disclose its
results, the interference with counsel, or the monitoring of Agent Dick and his communications
constitutes actionable retaliation. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272
(2001) (“[P]roceeding along lines previously contemplated, though not yet definitively
determined, is no evidence whatever of causality.”); Mogenhan v. Napolitano, 613 F.3d 1162,
1166 (D.C. Cir. 2010) (applying to Rehabilitation Act retaliation analysis the test of Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), which provides that the
“plaintiff must show that a reasonable employee would have found the challenged [retaliatory]
action materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination”).
examination and suspending him without pay, in violation of the ADEA. The Court, however,
denies the motion as to the other alleged instances of retaliation. 29
V. CONCLUSION
For the foregoing reasons, Defendants’ supplemental motion to dismiss or for partial
summary judgment (ECF No. 21) is GRANTED IN PART and DENIED IN PART. An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: February 19, 2015 RUDOLPH CONTRERAS
United States District Judge
29
To summarize, Agent Dick’s remaining claims are those for (i) discrete-act discrimination
under the ADEA as to the BOLO issuance, the improper collection and disclosure of confidential
information, the mandatory fitness for duty examination, the suspension without pay, the failure
to disclose examination results to him, the interference with his right to counsel, and the
monitoring of him and his communications with counsel; (ii) retaliation under both the
Rehabilitation Act and ADEA as to the improper collection and disclosure of confidential
information, the mandatory fitness for duty examination (completed in December 2013), the
failure to disclose examination results to him, the interference with his right to counsel, and the
monitoring of him and his communications with counsel; and (iii) retaliation under only the
Rehabilitation Act as to the suspension without pay.