Andueza v. Wilkinson ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSE GUILLERMO ANDUEZA CROCE, :
:
Plaintiff, : Civil Action No.: 21-00264 (RC)
:
v. : Re Document Nos.: 7, 12
:
MERRICK B. GARLAND, Attorney General, :
United States of America :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS THE
COMPLAINT AND GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SURREPLY
I. INTRODUCTION
Plaintiff Jose Guillermo Andueza Croce applied to become a Special Agent with the FBI
but was medically disqualified due to a color vision deficiency in 2016. He submitted a request
for a waiver of that requirement in March 2017, to which the FBI has not yet responded.
Andueza contacted the FBI’s Equal Employment Opportunity (EEO) office in April 2020, filed a
complaint with the agency in June 2020, and brought the present lawsuit in January 2021. The
Government has moved to dismiss on the grounds that Andueza has failed to exhaust
administrative remedies. The Court grants in part the Government’s motion as it relates to the
initial medical disqualification in 2016 and denies it in part as it relates to the 2017 request for a
waiver.
II. FACTUAL BACKGROUND
Andueza has commendably served this country as an Intelligence Analyst with the
Federal Bureau of Investigations (FBI) for over a decade. Pl.’s Original Compl. (“Compl.”) ¶ 5,
ECF No. 1. In 2014, he sought to broaden that admirable record of service by applying to
become a Special Agent. Id. ¶ 6. Despite successfully passing the first two phases of the
selection process and receiving a conditional offer in August 2016, his application was rejected
on October 17, 2016 because a medical officer had determined that he suffered from “color
blindness.” Id. ¶¶ 6, 8. The letter informing him of the decision read:
Your applicant fitness for duty examination for the Special Agent position has undergone
an individualized assessment by a FBI medical officer. The Medical Officer has
determined that your medical condition, color blindness, may jeopardize your ability to
safely and efficiently perform the essential functions of this position. We understand this
determination is a disappointment to you; however, please know that your current duties
in the FBI are already making a significant contribution to the security of our country.
Ex. A of Pl.’s Resp. to Def.’s Mot. Dismiss (“Pl. ROI”), at 15, 1 ECF No. 9-1.
In response, on March 9, 2017, Andueza sent an email through his Special Agent in
Charge to the FBI’s Assistant Director for Human Resources, David Schlendorf, “requesting a
waiver . . . so I can continue with the FBI Special Agent Application process.” Id. at 16–17;
Compl. ¶ 9. Andueza attached a letter from his doctor as supporting medical evidence. Compl. ¶
9. Mr. Schlendorf responded in May 2018, stating that the office had “reviewed your . . . email
appealing the discontinuation of your application” and requesting additional information. Pl.
ROI at 18; Compl. ¶ 10. Andueza provided the information, which included documentation of
how he could correct his minor color vision deficiency with a special lens, in June 2019. Compl.
¶ 10; Pl. ROI at 21. The agency acknowledged receipt in December 2020. Pl. ROI at 25.
Andueza followed up on his request in January 2020 requesting a response within thirty days.
Compl. ¶ 10. After hearing no response, see Compl. ¶ 10; Def.’s Mem. Supp. Mot. Dismiss
(“Def. Mot.), at 2, ECF No. 7-1, he contacted an EEO counselor in April 2020 and filed an EEO
1
Because Andueza submitted only selected pages from the full ROI, the page numbering
of Plaintiff’s ROI Exhibits cited here corresponds to the pdf page numbers in the attachment at
ECF 9-1 rather than the original pagination of the ROI.
2
complaint with the FBI in June 2020, Ex. A of Def.’s Mot. Dismiss (“EEO Compl.”), ECF No.
7-2.
As alleged in the Complaint, the reason for the agency’s failure to respond was that it had
put a handful of applicants with color vision deficiencies “on hold” pending a legal
determination about how to individually assess those waiver requests. Compl. ¶ 13. The
Complaint alleges that Andueza and at least four other candidates have been trapped in this
“limbo” for several years and that the FBI still does not provide individualized waiver
assessments to individuals with color vision deficiencies. Id..
When Andueza was interviewed by the EEO officer in May 2020, the counselor marked a
box noting that the contact was initiated more than 45 days beyond “any of the alleged
discriminatory incidents” but explained in an annotation that “Mr. Andueza provided all
allegations of harm to show a pattern of on-going discrimination.” Pl. ROI at 4. That form also
described Andueza’s claim as having “been subjected to discrimination based on his disability
when from March 2017 through the present, the Human Resources Division failed to provide a
response to his Special Agent (SA) waiver request.” Id. After 180 days without a decision on
his complaint, Andueza filed suit in this court. Compl. ¶ 16. The Government has moved to
dismiss the complaint, arguing that Andueza failed to exhaust administrative remedies by not
contacting EEO within 45 days of the discriminatory action, as required by regulation. Def. Mot.
at 5–7; 29 C.F.R. § 1614.105(a).
III. PRELIMINARY MATTERS
A. Legal Standard
A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's likelihood of success
on the merits, but rather “tests the legal sufficiency of a complaint” by asking whether the
3
plaintiff has properly stated a claim for which relief can be granted. Fed. R. Civ. P. 12(b)(6);
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint must be construed
“liberally in the plaintiff’s favor with the benefit of all reasonable inferences derived from the
facts alleged.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006) (citing Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). But “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,” are insufficient to withstand a motion
to dismiss. Id. A court need not accept a plaintiff's legal conclusions as true, id., nor must a
court presume the veracity of legal conclusions that are couched as factual allegations, Twombly,
550 U.S. at 555. “[A]n affirmative defense may be raised . . . under Rule 12(b) when the facts
that give rise to the defense are clear from the face of the complaint.” Smith-Haynie v. District of
Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998).
B. Reliance on Documents Outside of the Pleadings
“In determining whether a complaint fails to state a claim, [the Court] may consider only
the facts alleged in the complaint, any documents either attached to or incorporated in the
complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). At the motion to dismiss stage, the
Court may also rely on documents provided in the briefing “upon which the plaintiff’s complaint
necessarily relies even if the document is produced not by the plaintiff in the complaint.” See
Angelex Ltd. v. United States, No. 15-0056, 2015 WL 5011421, at *11 n.11 (D.D.C. Aug. 24,
2015) (internal quotation mark omitted) (quoting Ward v. D.C. Dep’t of Youth Rehab. Servs., 768
4
F. Supp. 2d 117, 119 (D.D.C. 2011)). In employment discrimination cases, courts may, and
often do, take judicial notice of EEOC charges and EEOC decisions. See, e.g., Golden v. Mgmt.
& Training Corp., 319 F. Supp. 3d 358, 366 n.2 (D.D.C. 2018); Spence v. Wolf, No. 19-cv-2919,
2020 WL 6075727, at *3 (D.D.C. Oct. 15, 2020). “[C]ourts may typically refer to administrative
records of Equal Employment Opportunity complaints, investigations, and adjudications for the
limited purpose of determining whether Plaintiff exhausted administrative remedies before suing
without converting the Motion to Dismiss into a Motion for Summary Judgment . . . .” Roberts
v. Scalia, 1:19-cv-00474, 2020 WL 1892057, at *3 n.2 (D.D.C. Apr. 16, 2020).
Both parties attach additional documents from the FBI’s EEO investigation in their
briefing that they contend are properly considered at the Motion to Dismiss phase. See Def. Mot.
at 2 n.1; Pl.’s Resp. to Def.’s Mot. Dismiss (“Opp’n”), at 1 n.1, ECF No. 9. The parties appear to
agree that the EEO complaint form and correspondence between Andueza and the FBI, while not
attached to the Complaint, are incorporated there by reference. See Def. Mot. at 2 n.1; Opp’n at
1 n.1; see also St. Francis Xavier Parochial Sch., 117 F.3d at 624 (allowing for consideration of
“documents either attached to or incorporated in the complaint” at the motion to dismiss stage).
Neither party disputes the authenticity of those materials, but the FBI objects to the
inclusion of some pages in the ROI that it claims are privileged and were inadvertently released.
See Def.’s Reply Supp. Mot. Dismiss (“Reply”), at 4 n.5, ECF No. 10 (“Plaintiff cites portions of
the [ROI] that include material protected by the attorney-client privilege . . . . Those
communications were inadvertently included . . . . Nevertheless, it is also apparent from those
documents that Plaintiff was disqualified from the Special Agent position.”). The disputed
portions of that attachment are the subject of a pending motion for a protective order that is not
yet ripe and which the Court takes no opinion on here. See Def.’s Mot. Protective Order, ECF
5
No. 14. For the purpose of resolving the present motion to dismiss, the Court will therefore
consider only the additional attachments to the Motion to Dismiss and the non-disputed
attachments to the Opposition. 2
IV. ANALYSIS
A. Administrative Exhaustion under the Rehabilitation Act
The sole count alleged in Andueza’s complaint is for discrimination on the basis of his
physical disability under the Rehabilitation Act. Compl. ¶ 17. The Rehabilitation Act requires
federal employees to exhaust administrative remedies by submitting a claim to the employing
agency before bringing suit. Doak v. Johnson, 798 F.3d 1096, 1099 (D.C. Cir. 2015). The
procedures for doing so, both under the Rehabilitation Act and other federal anti-discrimination
laws, are established by regulation at 29 C.F.R. § 1614 et seq.
The first step of that process is for an individual to “initiate contact with a [EEO]
Counselor within 45 days of the date of the matter alleged to be discriminatory,” 29 C.F.R.
§ 1614.105(a)(1), although that time may be extended by the agency where the employee was
not notified of the time limits, was not reasonably aware of the discriminatory act, or “for other
reasons considered sufficient by the agency,” id. § 1614.105(a)(2). Following informal
counseling, the aggrieved individual may then file a complaint with the agency that allegedly
discriminated against the complainant. 29 C.F.R. § 1614.106(a). Prior to a request for a hearing,
the agency shall dismiss a complaint “[t]hat fails to comply with the applicable time
limits . . . unless the agency extends the time limits in accordance with § 1614.604(c) . . . .” 29
2
The Government attaches additional emails to its Reply brief without contending that
they are incorporated by reference in the Complaint or that they are necessary to resolve this
Motion. See Reply at 3 n.3. The Court also has not considered those additional attachments in
resolving this Motion.
6
C.F.R. § 1614.107. Section 1614.604(c) in turn states that the time limits within the regulations
are subject to equitable tolling, waiver, and estoppel. Id. § 1614.604(c). “Once [the formal
administrative grievance] process concludes or stalls, the Rehabilitation Act authorizes the filing
of a lawsuit in federal court by ‘any employee or applicant for employment aggrieved by the
final disposition of [her administrative] complaint, or by the failure to take final action on such
complaint.’” Doak, 798 F.3d at 1100 (quoting 29 U.S.C. § 794a(a)(1)).
The failure to comply with the proscribed timelines is non-jurisdictional, meaning that
they are subject to the doctrines of waiver, equitable tolling, and estoppel. Id. at 1103–04; Steele
v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008) (stating that failure to comply with the 45-day
limit bars review “absent a basis for equitable tolling”); Williams v. Brennan, 320 F. Supp. 3d
122, 127–28 (D.D.C. 2018), aff’d, No. 18-5256, 2019 WL 669716 (D.C. Cir. Feb. 12, 2019)
(discussing Doak, 798 F.3d at 1103–04) (describing how “statutory and administrative
exhaustion requirements” have distinct jurisdictional consequences). “The initial burden of
establishing a plaintiff’s failure to exhaust administrative remedies rests with the defendant; the
plaintiff, however, has the burden of demonstrating that equitable tolling is warranted.” Foster v.
Gonzales, 516 F. Supp. 2d 17, 22 (D.D.C. 2007) (internal citations omitted).
B. The October 2016 Disqualification
The primary dispute between the parties at this stage is whether Andueza has complied
with the relevant procedure by contacting an EEO officer within 45 days of the alleged
discriminatory act. Andueza first contacted an EEO counselor on April 30, 2020. See EEO
Compl. The Government maintains that the sole discriminatory act alleged in the Complaint is
Andueza’s disqualification from the Special Agent application process, which occurred in
October 2016—making his initial contact with EEO several years too late. See Def. Mot. at 5;
7
Reply at 3. The Government also contends that Andueza’s waiver request was an internal
method of review that does not toll or extend the 45-day period. Reply at 6. Andueza argues
that the October 2016 decision was never final, and that his waiver request was instead an
integrated part of the same application, which remains undecided to this day. Opp’n at 8–11.
1. Finality of the Decision
“An aggrieved person must initiate contact with a Counselor within 45 days of the date of
the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the
effective date of the action.” 29 C.F.R. § 1614.105(a)(1). That clock begins to run “when the
aggrieved ‘knew, or should have known, about the alleged discriminatory action.’” Gonzalez v.
Clinton, No. 9-cv-1026, 2011 WL 13273217, at *3 (D.D.C. June 24, 2011) (quoting Stewart v.
Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003)). Andueza knew upon receipt of the October 2016
letter that he had been disqualified from the Special Agent process and that his color vision
deficiency was the reason for his disqualification. Compl. ¶ 8. Therefore, to the extent that his
EEO complaint challenged his disqualification in October 2016, it was several years too late.
It is settled law that “the pendency of a grievance, or some other method of collateral
review of an employment decision, does not toll 3 the running of the limitations periods.” Del.
State Coll. v. Ricks, 449 U.S. 250, 261 (1980). Andueza argues, however, that his March 2017
waiver request extended the application process itself rather than collaterally reviewing it,
meaning the October 2016 decision was never final. Opp’n at 10–11. The Court determines that
3
The Court takes care to note that Andueza argues that the October 2016 decision was
never final, not that the waiver request tolled the 45-day time limit. Nor could he––not only is
that argument squarely foreclosed by the precedent in Ricks cited above, Andueza submitted the
waiver request in March 2017, Compl. ¶ 9, already more than 45 days after the October 2016
letter. But because the cases on tolling contain relevant analysis on the issue of finality and are
discussed at length by the parties, the Court considers them here for that purpose.
8
neither the relevant case law nor the allegations in the Complaint support that characterization of
the October 2016 decision.
As a general matter, knowledge of a discriminatory decision starts the clock for statute of
limitations purposes despite the existence of procedures that may change the ultimate outcome.
In Ricks v. Delaware State College, a professor was informed that he would not receive tenure
and that his teaching contract would expire the following year. 449 U.S. at 252–53. The
Supreme Court determined that “the only alleged discrimination occurred—and the filing
limitations periods therefore commenced—at the time the tenure decision was made and
communicated to Ricks . . . even though one of the effects of the denial of tenure . . . did not
occur until later.” 4 Id. at 258. The Court treated the letter denying tenure as a final employment
decision even though that very letter “explicitly held out to Ricks the possibility that he would
receive tenure if the Board sustained his grievance,” id. at 260, reasoning that “[t]he grievance
procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that
decision before it is made,” id. at 261 (emphasis in original).
The Government’s citation to Foster v. Gonzalez, 516 F. Supp. 2d 17, is likewise
persuasive. In Foster, an employee received a letter terminating his employment effective
immediately, but argued that his pursuit of an internal appeal which allowed for independent
factual redeterminations made that letter a “non-final” decision. Id. at 23 & n.4. The court
disagreed, pointing out that the regulation required contact “within 45 days of the effective date
of the action,” and his termination had undisputedly become effective when he received the
4
Ricks involved a deadline for filing an EEOC complaint under 42 U.S.C. § 2000e-5(e)
rather than the 45-day time limit for contacting EEO here. Ricks, 449 U.S. at 256. Because the
45-day time limit functions like a statute of limitations, see Doak, 798 F.3d at 1104, the same
underlying principles apply.
9
letter. Id. at 23 (quoting 29 C.F.R. § 1614.105(a)(1)) (emphasis in original). Moreover, even if
the appeal could have reinstated Foster, “the denial of an appeal” is not “a fresh act of
discrimination that triggers the 45-day deadline anew.” Id. (internal quotations omitted).
Nor was the Foster court swayed by the policy consideration that “a favorable decision
on his internal appeal might have mooted completely the need to pursue a Title VII remedy.” Id.
at 25. 5 While true, “the Supreme Court confirmed that Title VII and internal grievance
procedures should be undertaken concurrently even though the pursuit of both could lead to
conflicting results,” and “the application of Title VII requirements should not vary depending
upon whether a claimant chooses to pursue voluntary internal appeals.” Id. This logic likewise
applies to Rehabilitation Act claims raising discrete acts of discrimination (such as the medical
disqualification) which are governed by the same regulation. See Roberts, 2020 WL 1892057, at
*7 (“[U]nder both the Rehabilitation Act and Title VII . . . the standards for analyzing whether
[the plaintiff] has exhausted administrative remedies is the same . . . .”).
Andueza places great weight on the phrase “collateral review” in Ricks, Foster, and other
cases, contrasting his waiver request as part of an “integrated” process. 6 See Opp’n at 10–11 &
5
To be sure, Andueza raised the same issue—disqualification on the basis of his color
blindness—in both the EEO complaint and the waiver request, unlike the distinct issues in
Foster’s internal appeal and his Title VII claim. See Opp’n at 9–10. But contrary to Andueza’s
assertion, id., that was not the dispositive reason that the two processes should have run
concurrently in Foster. Rather, it was because “[t]he two remedies ‘have legally independent
origins and are equally available to the aggrieved employee.’” Foster, 516 F. Supp. 2d at 24(quoting Int’l Union of Elec., Radio & Mach. Workers v. Robbins & Myers, Inc., 429 U.S. 229,
236 (1976)).
6
Andueza’s Motion for Leave to File a Surreply seeks to respond to the discussion of
Ricks that appears in the Government’s Reply brief. Pl.’s Mot. Leave to File Surreply (“Surreply
Mot.”), ECF No. 12. A court determining whether to allow a surreply considers whether the
reply raises new arguments, whether the proposed surreply would be helpful to the resolution of
the pending motion, and whether the other party would be unduly prejudiced. Glass v. Lahood,
786 F. Supp. 2d 189, 230–31 (D.D.C. 2011). “[T]he determination of whether to grant or deny
leave is entrusted to the sound discretion of the district court.” Id. at 231. The Government’s
10
n.5. But this is ultimately a distinction without a difference. Andueza does find some support
for this reasoning in Harris v. Ladner, 127 F.3d 1121 (D.C. Cir. 1997). See Opp’n at 10. In
Harris, a professor was notified of a negative tenure decision, but the court determined that it
was not a final decision until after she had passed through the reconsideration process. 127 F. 3d
at 1124. The key to this holding, however, was not that the reconsideration was a direct rather
than collateral review, but that the university “conceded during oral argument [that] those
procedures provide for reconsideration before the final decision”—meaning that the decision
itself was never final. Id. (emphasis in original). The FBI makes no such concession here.
The Court is similarly unconvinced by the dicta in Truelove v. Trs. of the Univ. of D.C.,
744 F. Supp. 307 (D.D.C. 1990). The holding in Truelove was that the Title VII statute of
limitations ran from the date that Truelove had been notified of a negative evaluation. Id. at 311.
But the court also observed that Truelove “declined to file a direct appeal of his evaluation,” and
as a result “because any review instigated by his actions would be collateral and conducted
outside the formal appeals process, it would not toll the commencement of the limitations
period.” Id. Still, that does not necessarily mean that the outcome would have been different if
Truelove had filed a “direct” appeal rather than a “collateral” one. See Opp’n at 11. Indeed, in
Ricks, the employee did appear to follow the proscribed internal procedures for direct review, but
the Court still referred to the grievance as “collateral.” Ricks, 449 U.S. at 252.
discussion of Ricks responded to Andueza’s already well-developed argument about whether his
waiver request was “collateral.” See Opp’n at 10–11. While Andueza may take issue with the
Government’s selective quotation of Ricks, that does not make the Government’s argument
“new” such that he requires an opportunity to respond. See id. Nevertheless, because the Court
disagrees with Andueza on the merits of this argument, it would reach the same result either way.
The Court therefore grants the motion and will deem the proposed surreply, which was attached
as an exhibit to the Surreply Motion, filed.
11
Collectively, these cases suggest that the label of an internal process as a grievance, an
appeal, a reconsideration, a waiver, or some other term is less important than its function:
whether it seeks to change a decision that has already been made. See Gonzalez, 2011 WL
13273217, at *5 (“Where the plaintiff alleges that the employer promised to reconsider a
decision, the inquiry becomes did the ‘reconsideration’ constitute ‘a remedy for a prior decision,
[or] an opportunity to influence that decision before it [wa]s made.’”) (quoting Ricks, 449 U.S. at
261). The Court concludes that the function of Andueza’s March 2017 waiver request was to
remedy a decision that had already been made in October 2016.
First, the language of the procedure for requesting a waiver—submitted by Andueza as
part of the EEO record—indicates that it is a safeguard for reviewing or overriding a medical
disqualification, not for influencing it in advance. Pl. ROI at 14 (policy stating that “[a]pplicants
deemed medically disqualified for the SA position may submit appeals in writing”). The
existence of that waiver procedure, and even the FBI’s “willingness to change its prior decision”
if needed, “does not suggest that the earlier decision was in any respect tentative.” Ricks, 449
U.S. at 261.
Next, the Medical Officer’s decision disqualified Andueza from the Special Agent
application process in no uncertain terms. The language of the letter was final, including a
recognition that “[w]e understand this determination is a disappointment to you.” Pl. ROI at 15.
Andueza also appeared to understand the communication as having a final and immediate effect,
describing its content in his waiver request as “stating why I cannot continue with the FBI
Special Agent process” and noting that it lacked instructions for “how [to] appeal the decision.”
Id. at 17. Even the Complaint characterizes the communication as an unequivocal decision,
saying Andueza was notified “that an FBI medical officer had determined he suffered from
12
‘color blindness’ and would therefore be unable to safely perform the essential tasks of the
Special Agent position.” Compl. ¶ 8. While a court deciding a motion to dismiss must draw
reasonable inferences in the plaintiff’s favor, Stewart v. Nat’l Educ. Ass’n, 471 F.3d at 173, a
complaint cannot be amended through an opposition to a dispositive motion, Arbitraje Casa de
Cambio, S.A. de C.V. v. USPS, 297 F. Supp. 2d at 170. Andueza’s recharacterization of the
October 2016 letter as lacking finality attempts to do the latter. See Opp’n at 9–10. Thus, to the
extent that Andueza challenges the October 2016 decision as discriminatory, his pursuit of
administrative remedies was untimely.
2. Agency Waiver
Andueza also argues that the FBI has waived any objections to its exhaustion argument
before this Court by accepting his EEO complaint as timely in June 2020. See Opp’n at 12–13.
The failure to comply with the regulatory procedures for administrative exhaustion are non-
jurisdictional and can be waived by the agency. See Doak, 798 F.3d at 1103–04 (holding that an
agency waived any untimeliness when it “not only accepted and investigated Doak’s complaint,
but also decided it on the merits”) (cleaned up). The FBI did accept and begin to investigate the
EEO complaint. See Pl. ROI at 5 (stating in the letter acknowledging his EEO complaint that the
agency had “accepted for investigation” the issue of whether the failure to respond to the waiver
request “from March 2017 to the present” was discriminatory 7). But it does not necessarily
follow that the “FBI concluded the complaint was timely,” as Andueza claims. Opp’n at 12.
7
This language could also imply that the FBI waived the potential untimeliness relating
to the handling of the waiver request, but not the initial disqualification. Because the Court
concludes that the FBI has not met its burden of showing failure to exhaust for that latter act of
discrimination, see infra Section III.D.3, it is unnecessary to address any potential equitable
waiver argument relating to the handling of the March 2017 request at this time.
13
Unlike the EEO complaint in Doak, which the agency had resolved on the merits, the FBI
has not issued any opinion in this case. See Doak, 798 F.3d at 1103–04. “[A]gencies do not
waive a defense of untimely exhaustion merely by accepting and investigating a discrimination
complaint;” they must also address it on the merits. Bowden v. United States, 106 F.3d 433, 438
(D.C. Cir. 1997); see also Nurriddin v. Bolden, 674 F. Supp. 2d 64, 86–87 (D.D.C. 2009) (“[T]he
rationale of Bowden rests primarily on the agency having responded to the employee’s claim on
the merits during the administrative process”); Tumblin v. Barr, No. 19-cv-2204, 2020 WL
7078826, at *3 (D.D.C. Dec. 3, 2020) (finding that the 45-day limit was not waived where the
agency accepted a claim for investigation and only raised untimeliness in the “final agency
decision” and “its first substantive motion in this litigation”). Nor does the text of the
regulations preclude an agency from accepting a complaint for investigation and then later
dismissing it for untimeliness—to the contrary, an agency can either dismiss a complaint for
untimeliness or “extend[] the time limits” at any point “[p]rior to a request for a hearing.” 29
C.F.R. § 1614.107. Andueza does not allege that either of these actions have occurred, merely
that he “presented a timely EEO complaint” in the first instance. See Compl. ¶ 15. This type of
bare assertion is exactly the kind of “legal conclusion[] . . . couched as factual allegation[]” that
the Court need not presume to be true. Twombly, 550 U.S. at 555. Without any facts that would
give rise to an inference of waiver, the Court cannot conclude that the FBI waived Andueza’s
failure to exhaust any potential discrimination in the October 2016 decision.
C. The March 2017 Waiver Request as a Separate Discriminatory Act
Yet that does not entirely end this inquiry. “A party must exhaust . . . administrative
remedies for each discrete act of discrimination or retaliation alleged or lose the ability to
recover for it.” Bell v. Donley, 724 F. Supp. 2d 1, 8 (D.D.C. 2010) (emphasis added) (citing
14
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–15 (2002)). Although Andueza failed
to exhaust administrative remedies to challenge his 2016 disqualification, the Complaint also
alleges a second discriminatory action: the failure to respond to Andueza’s waiver request in
2017.
1. Sufficiency of the Allegations Asserting a Second Discriminatory Action
The Government disagrees that a second act of discrimination had been alleged in the
Complaint or raised before the agency. See Def. Mot. at 5; Reply at 3. But the Court agrees with
Andueza that “the complaint describes Mr. Andueza’s previously-discussed request for waiver or
appeal in March 2017 and describes in subsequent paragraphs a still pending process.” Opp’n at
9. It also includes specific factual allegations that the failure to respond to the waiver request
was directly related to Andueza’s disability of color vision deficiency. See Compl. ¶ 12 (“Dr.
Snyder acknowledges that there has been discussion about developing an individualized
assessment for Special Agent applicants with a color vision deficiency. That this is still missing
from the FBI’s protocol is at odds with the FBI’s legal duty to individually assess all
applicants.”); id. ¶ 13 (“[T]he FBI has left these applicants in what it candidly admits is the ‘legal
color-vision limbo.’”). 8
8
Although the Government is correct that the denial of an appeal is not a new act of
discrimination, an appeal can be discriminatory in its own right if it proceeded differently for an
aggrieved applicant on the basis of a protected characteristic than for other individuals
undergoing the same process. See Ricks, 449 U.S. at 258 (“In order for the limitations periods to
commence with the date of discharge, Ricks would have had to allege and prove that the manner
in which his employment was terminated differed discriminatorily from the manner in which the
College terminated other professors who also had been denied tenure.”). Acknowledging that
Andueza’s 2017 request was both a request for accommodation and an appeal, the facts in the
Complaint still suggest that the appeal was discriminatory by alleging that the FBI has treated
waiver requests from individuals with color vision deficiency differently than other medically
disqualified applicants. See Compl. ¶¶ 12–14.
15
Andueza’s March 2017 email “asked for a waiver” in order to continue with the Special
Agent application process, and he provided specific information regarding the effectiveness of a
corrective lens when requested as a follow up. Compl. ¶¶ 9–10. These facts properly relate to
Andueza’s alleged claim for failure to accommodate under the Rehabilitation Act. See Compl.
¶ 17 (“Defendant failed to accommodate his disability, even though it would have been quite
easy to do so.”). Federal agencies have an obligation to adopt reasonable accommodation
processes that, among other things, “[d]esignate the maximum amount of time the agency has . . .
to either provide a requested accommodation or deny the request,” 29 C.F.R.
§ 1614.203(d)(3)(i)(M), and explain that even prior to that maximum, “failure to provide the
accommodation in a prompt manner may result in a violation of the Rehabilitation Act,” id. at
§ 1614.203(d)(3)(i)(O).
An agency’s obligation to offer reasonable accommodation under the Rehabilitation Act
involves “a flexible give-and-take between employer and employee” that requires good faith on
both sides. Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (internal quotations omitted).
“The request for accommodation does not have to be formal, and the words ‘reasonable
accommodation’ do not have to be used, but the employer must be alerted to the condition and
the need for accommodation.” Thompson v. Rice, 422 F. Supp. 2d 158, 176 (D.D.C.
2006), aff’d, 305 F. App’x 665 (D.C. Cir. 2008); see also Taylor v. Phoenixville Sch. Dist., 184
F.3d 296, 313 (3d Cir.1999) (“[T]he notice does not have to be in writing, be made by the
employee, or formally invoke the magic words ‘reasonable accommodation’ . . . .”).
Andueza’s waiver request satisfied that notice requirement. The FBI knew of Andueza’s
color vision impairment and Andueza made his desire for an accommodation of that impairment
clear. See Pl. ROI at 17 (stating in the email to the HR Director “I am respectfully requesting a
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waiver from your behalf so I can continue with the FBI Special Agent Application process. I
have attached a letter addressed to you which provides background on myself and my current
situation [and] a letter from an optometrist . . . .”). Plus, Andueza followed the exact process
recommended by the FBI headquarters. See id. (“[M]y applicant coordinator had to call FBI
headquarters for this information and they advised to write a letter addressing you requesting a
waiver.”). Finally, the response from HR Assistant Director Schlendorf both acknowledged the
disability and manifested the interactive process for finding a reasonable accommodation by
requesting more information, see id. at 18 (“Please provide some additional details, and any
supporting documentation, regarding your experience with performing the Special Agent
essential tasks related to vision . . . . Please provide any details and documentation you have
regarding your use of the Enchroma lens . . . .”), which Andueza provided, see Compl. ¶ 10.
“A party that obstructs or delays the interactive process [or] fails to communicate, by way
of initiation or response” does not act in good faith. Ward v. McDonald, 762 F.3d at 32 (quoting
(EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir.2005)). In addition, “unreasonable
delay in implementing a ‘reasonable accommodation’ can constitute a discriminatory act.” See
Krocka v. Riegler, 958 F. Supp. 1333, 1342 (N.D. Ill. 1997) (an eight-month denial of a change
in shift was a failure to accommodate); Hill v. Clayton Cnty. Sch. Dist., 619 F. App’x 916, 922
(11th Cir. 2015) (a two-month wait for an air-conditioned bus); Pierce v. Nat’l Archives & Recs.
Admin., No. 19-cv-2876, 2020 WL 7640835, at *2 (D. Md. Dec. 23, 2020) (16 months and
multiple denials before a requested accommodation was granted). At this stage, Andueza’s
allegation that the FBI has left him in limbo for over two years since he provided the requested
information in June 2019, and over four years in total, plausibly alleges such unreasonable delay.
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2. Exhaustion of the 2017 Waiver Request Claim
Because the failure to process the 2017 waiver request was a separate act of
discrimination, Andueza also had an obligation to exhaust it. Morgan, 536 U.S. at 114–15. In
tandem with its assertion that the Complaint alleges only one discriminatory act, the Government
argues that Andueza only complained to the FBI about his initial disqualification. See Def. Mot.
at 5. The Government attaches the agency’s EEO complaint form to its motion in support of this
point, noting that Andueza had complained that “[i]n October 2016 FBI Human Resources
Division (HRD) disqualified me from the Special Agent (SA) process.” EEO Compl. But the
very next sentence of that document states that “I requested a waiver from HRD . . . but as of 22
June 2020 I have not heard anything back” and alleges that Andueza was “treated differently”
because “the Bureau does allow SA applicants who have some degree of colorblindness to
become SAs.” Id. That language describes two discriminatory acts.
When determining whether administrative exhaustion was timely, courts generally begin
by “analyz[ing the] Plaintiff’s claims to determine whether they fall into the category of discrete
or ongoing discriminatory acts.” Gordon v. Napolitano, 786 F. Supp. 2d 82, 84 (D.D.C. 2011).
The Supreme Court has likewise differentiated between discrete acts, which must each be
exhausted even if they are part of a pattern, and hostile work environment claims, which by
“their very nature involve[] repeated conduct.” Morgan, 536 U.S. at 115. Usually, failure-to-
accommodate claims fall into the former category, because there is a specific moment when an
accommodation was denied. See, e.g., Roberts, 2020 WL 1892057, at *7 (finding a failure-to-
accommodate claim untimely where the employee did not comply with the 45-day deadline);
Gulakowski v. Barr, 19-cv-32, 2019 WL 4469241, at *5 (D.D.C. Sept. 18, 2019) (treating
failure-to-accommodate claim as a discrete act that was time-barred by the 45-day limit).
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However, courts have sometimes recognized ongoing patterns of discrimination outside of the
narrow confines of hostile work environment, such as when there is a pattern of retaliation. See
Nguyen v. Mabus, 895 F. Supp. 2d 158, 184 (D.D.C. 2012) (treating the continued exclusion of
an employee from certain budgetary meetings as an ongoing retaliatory harm).
The ongoing failure to provide an accommodation—or at least an individualized
assessment denying it—does not fit neatly into either category. But as the regulations and case
law regarding delay on reasonable accommodation requests suggest, an agency cannot avoid its
obligations by opting out of decision-making altogether. Ward v. McDonald, 762 F.3d at 32 (“A
party that fails to communicate” regarding reasonable accommodation requests may violate the
Rehabilitation Act) (quoting EEOC v. Sears, Roebuck & Co., 417 F.3d at 805). At the time
Andueza contacted the EEO officer in 2020, his request was still pending before the FBI, and the
FBI had repeatedly failed to meaningfully communicate about the status of his request. See
Compl. ¶ 10; EEO Compl. And when Andueza presented that claim, the agency appears to have
treated the failure to respond, rather than the initial disqualification, as the “ongoing violation”
that it agreed to investigate. Pl. ROI at 5 (accepting for investigation “whether complainant was
discriminated against . . . when, from March 2017 to the present, the Human Resources Division
has not responded to his Special Agent waiver request). 9
Andueza’s briefing on this point leaves much to be desired—to the point that it borders
on waiving the argument. See Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[I]t
is not the obligation of this Court to research and construct the legal arguments available to the
9
As described above, that does not necessarily mean that the FBI determined the
complaint was timely such that it waived exhaustion. But because the Government has failed to
meet its burden of showing that the Complaint was untimely at all, the Court need not decide that
here.
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parties.”) (cleaned up). Nevertheless, failure to exhaust administrative remedies is an affirmative
defense, which should only resolve a Rule 12(b) motion “when the facts that give rise to the
defense are clear from the face of the complaint.” Smith-Haynie, 155 F.3d at 578; see also
Mondy v. Sec’y of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (MacKinnon, J.,
concurring) (“[F]ailure to exhaust administrative remedies is an affirmative defense, and
therefore [the plaintiff] was not required to anticipate it in his complaint.”); Nurriddin, 674 F.
Supp. 2d at 86 (denying a motion to dismiss where “defendants have failed to establish, on the
present record, that plaintiff failed to exhaust his administrative remedies”).
Here, it is not clear from the Complaint or the attached documents that Andueza failed to
exhaust administrative remedies regarding this second alleged act of discrimination. Because the
Government has not met its burden of showing that Andueza failed to exhaust administrative
remedies for his claim that the FBI failed to accommodate his disability by failing to respond to
the waiver request, his lawsuit may proceed for that claim alone.
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED in part and
DENIED in part and Plaintiff’s Motion for Leave to File a Surreply is GRANTED. An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: November 9, 2021 RUDOLPH CONTRERAS
United States District Judge
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