On April 13, 1998, the MSPB AJ held a prehearing telephone conference,
at which time plaintiff proceeded pro se and defendant was represented by
agency counsel Susan Harvey. During that telephone conference, plaintiff
informed the MSPB AJ that he was withdrawing his MSPB appeal because he
would rather pursue his appeal in the EEO forum. Upon his withdrawal, the
MSPB AJ stated, "Then you can go ahead and pursue your matters through
the EEO forum as you planned." (Def.Mot.Exh. 10).
The MSPB AJ issued a decision on April 17, 1998, holding that if was
"appropriate that the appeal be DISMISSED, with prejudice, as withdrawn."
Defendant's EEO Office did not dismiss plaintiff's EEO complaint until
May 12, 1998, citing plaintiff's prior filing before the MSPB as the
reason for dismissal. (Def.Mot.Exh. 13). Plaintiff appealed to the EEOC.
The EEOC denied plaintiff's appeal on October 18, 1999, holding that
plaintiff's "withdrawal of his MSPB appeal on April 13, 1998, did not
negate his prior [forum] election." (Def.Mot.Exh. 14 at 2). The decision
on appeal indicated that plaintiff had a right to file a civil action
within ninety days of receipt of the decision. (Id. at 3-4).
Plaintiff filed a complaint in this Court on January 14, 2000.
Plaintiff alleges violations of Title VII, the Rehabilitation Act, and
the Age Discrimination in Employment Act, claiming discrimination on the
basis of race, age, and disability. Defendant now moves for dismissal of
this action, or in the alternative, for summary judgment pursuant to
Fed.R.Civ.P. 12(b)(1), 12(b)(6), 12(h)(2), 12(h)(3), and 56 for
failure to exhaust administrative remedies.
I. Is Exhaustion of Administrative Remedies Required?
Defendant argues that plaintiff failed to exhaust his administrative
remedies before the MSPB by withdrawing his appeal there. (Def. Mot. at
5). Defendant also argues that plaintiff failed to exhaust his
administrative remedies before the agency by first electing to file an
appeal before the MSPB, and then filing an EEO complaint with the agency,
thus leading to the agency's dismissal of the EEO complaint. (Def. Mot.
With respect to complaints alleging violations of Title VII, it is
well-settled that a plaintiff is required to exhaust his administrative
remedies prior to filing a judicial complaint. See Ososky v. Wick,
704 F.2d 1264, 1265 (D.C.Cir. 1983) (citing Brown v. GSA, 425 U.S. 820,
832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). Likewise, the exhaustion
requirement extends to those individuals filing a claim under the
Rehabilitation Act for Title VII violations in the workplace. See Thorne
v. Cavazos, 744 F. Supp. 348, 350 (D.D.C. 1990), aff'd, No. 92-5137, 1993
WL 32323 (D.C.Cir. Jan. 29, 1993).
In contrast, "exhaustion of administrative remedies is not a
prerequisite to filing a judicial complaint alleging an ADEA violation."
Id. Rather, "the only exhaustion requirement mandated by section 15 of
the ADEA [is] that of either providing the EEOC with notice of an intent
to sue within 180 days of the unlawful practice, or actually filing a
discrimination complaint with the EEOC." Kennedy v. Whitehurst,
690 F.2d 951, 961 (D.C.Cir. 1982); see 29 U.S.C. § 633a. Therefore,
plaintiff could have chosen to proceed directly to this Court rather than
filing for review of his ADEA claim through agency procedures.
However, if is unclear whether there is an exhaustion requirement for
ADEA claims when, as in this case, administrative relief is sought before
a court action is instituted. Compare, e.g., Purtill v. Harris,
658 F.2d 134 (3rd Cir. 1981); cert. den., Purtill v. Heckler,
462 U.S. 1131, 103 S.Ct. 3110, 77 L.Ed.2d 1365 (1983) (requiring
exhaustion once administrative remedies are sought) and Castro v. U.S.,
775 F.2d 399, 404 (1st Cir. 1985) (finding that allowing an
individual to initiate a civil action before exhausting administrative
remedies, once they are initiated, would be inconsistent with one of the
central objectives of the exhaustion requirement — to encourage
mediation or conciliation), with Langford v. Army Corp. of Engineers,
839 F.2d 1192, 1193-94 (6th Cir. 1988) (stating that "the ADEA may be
construed to permit the filing of a civil action at any time when an
employee or applicant has filed an age discrimination complaint with the
EEOC"). The D.C. Circuit has not squarely addressed this issue.
The Court need not reach the issue of whether exhaustion is required
under the ADEA, however, for even if plaintiff has failed to exhaust his
administrative remedies, there are equitable reasons for excusing him
from doing so.
II. Plaintiff is Excused from Exhausting His Administrative Remedies
Even if plaintiff has not properly exhausted his administrative
remedies by failing to follow the highly technical requirements relating
to mixed case filings, the failure to do so does not bar plaintiff from
filing a complaint in this Court. The D.C. Circuit has held that
"exhaustion [is] not jurisdictional in nature but rather [is a] statutory
condition precedent to the instigation of litigation and [is] therefore
subject to waiver, estoppel, and equitable tolling." Kennedy v.
Whitehurst, 690 F.2d 951, 961 (D.C.Cir. 1982). The D.C. Circuit reasoned
that this principle holds true with respect to both Title VII and the
ADEA. See id.
Plaintiff may be excused from exhaustion requirements where the Court
finds that there are equitable reasons for doing so. See Paterson v.
Weinberger, 644 F.2d 521, 524 (5th Cir. 1981) (in ADEA case, holding that
"[p]laintiff was required to seek relief through one of the two avenues
described or alternatively claim equitable grounds for not having so
proceeded and must prove that the reasons he was prevented from proceeding
can be blamed upon the employing agency"); see also Siegel v. Kreps,
654 F.2d 773, 777 (D.C.Cir. 1981) (noting that "equitable considerations"
may prevent dismissal of the action for failure to exhaust administrative
remedies in a Title VII case).
In determining whether there are equitable reasons for excusing a
failure to exhaust, courts consider a plaintiff's intelligence and
familiarity with the process. See Ettinger v. Johnson, 556 F.2d 692, 698
(3rd Cir. 1977); see also Bayer v. U.S. Dept. of Treasury, 956 F.2d 330,
333 (D.C.Cir. 1992) (citing cases in which intelligence, education, and
awareness of the regulations were relevant to whether plaintiff could be
excused from meeting procedural requirements for filing administrative
complaints). Another factor is whether the defendant agency has actual
notice of plaintiff's claims. As held by the D.C. Circuit and this
Court, a plaintiff will not be deprived of judicial review based on a
failure to follow the procedural technicalities of the exhaustion
requirement where defendant has been "put on notice" of plaintiff's
claims. President v. Vance, 627 F.2d 353, 362 (D.C.Cir. 1980); Smith v.
Dalton, 971 F. Supp. 1, 3 (D.D.C. 1997); Morton v. Mosbacher, 1991 WL
222290, *3 (D.D.C. October 15, 1991). The reason for such holdings goes
to the underlying purpose of the exhaustion requirement, that is to give
the agency "the opportunity as well as the responsibility to right any
wrong that in might have done." President, 627 F.2d at 362. "Adequacy of
notice is the core of Title VII's exhaustion requirement." Brown v.
Marsh, 777 F.2d 8, 14 (D.C.Cir. 1985). Finally, this Court has recognized
that a defendant may have taken actions that cause if to be estopped from
arguing failure to exhaust administrative remedies as a defense to a
plaintiff's claims. See Berry v. Abdnor, 1989 WL 46761, *2 (D.D.C. April
20, 1989) (citing "equitable principles," such as "if plaintiff were to
allege that defendant concealed facts from him or misled him in some
other manner," as reasons why "the
defendant should be estopped from asserting failure to exhaust
administrative remedies as a defense").
The unique circumstances surrounding plaintiff's case clearly provide
the Court with reason to excuse him from the exhaustion requirements he
confronted. It is uncontested that when plaintiff first received the
memorandum on Avenues of Redress on January 7, 1998, no one explained the
meaning of this highly complicated document to him. (See Pl. Mot. Exh. 1
¶ 16). The failure to do so was in violation of MD-110's requirement
that EEO counselors explain the requirements for initiating a formal
complaint. Furthermore, it is undisputed that plaintiff was inexperienced
with filing a mixed-case appeal before the MSPB, and if is also
undisputed that plaintiff suffered from a mental disability. Thus, if is
understandable that plaintiff would be confused when confronted by the
forum election provision. While the election requirements indicate that
if a claimant has proceedings in two forums, the one filed first is the
one that remains valid while the other one is dismissed, the language
does not clearly state that the claimant may not withdraw voluntarily
from the first proceeding in an effort to ensure that he is proceeding in
only one forum. Moreover, immediately following the election forum
requirements, the memorandum states that "if your complaint is not
resolved at the conclusion of counseling, you may file a formal EEO
complaint within 15 calendar days of receipt of the counselor's notice of
right to file a discrimination complaint." (Def. Mot. Exh. 1 at 4). The
memorandum does not indicate that you may not file a formal EEO complaint
at the end of counseling if you have filed an MSPB appeal. Thus, to those
unfamiliar with the process and untrained in this area of the law, the
memorandum is, at best, confusing.
After the MSPB appeal was filed on January 28, 1998, plaintiff's
confusion was further compounded when defendant's EEO Office gave him the
Notice of Right to File a formal EEO complaint on February 23, 1998.
Plaintiff understood it to indicate that he could file a formal EEO
complaint regarding the termination decision. (Pl. Mot. Exh. 1 ¶
20). Moreover, the Notice of Right to File does not clarify plaintiff's
responsibilities, but rather, if appears to permit dual filings since if
merely asks the complainant to indicate by checking a box if he has filed
an MSPB appeal, and if so, the complainant is merely told that such an
appeal could affect whether "[the] complaint is appropriate for
processing." (Pl.Mot.Exh. 20). Obviously, a lay-person would not be put on
notice that he has improperly filed with the agency.
It appears that plaintiff was not represented by counsel when he filed
the EEO complaint three days later on February 26, 1998, even though he
listed Julie Myers as his counsel on the complaint form. (See Def. Mot.
Exh. 7 (letter from firm which had represented plaintiff, indicating that
plaintiff had been notified that the firm would withdraw from representing
him if he failed to make an additional retainer payment by January 31,
1998 and that plaintiff was "advised by telephone that the firm would
withdraw from representing him"); Pl. Opp. Exh. 1 ¶¶ 20-21A
(plaintiff's affidavit, indicating that he believed that the Notice of
Right to File a Discrimination Complaint was served on plaintiff and not
his representative and that he learned that he might not be represented
when he attempted to contact his attorney about the Notice)). It is not
surprising that, believing his counsel was no longer representing him, he
endeavored to follow the directions set forth in the Notice of Right to
File by filing a formal complaint within 15 days of receipt of the
Having improperly filed both before the MSPB and in the EEO forum,
plaintiff made the critical error of withdrawing the wrong complaint after
having been misled by the MSPB AJ, who mistakenly informed plaintiff that
he would be able to proceed with his claim before the agency if
he withdrew his MSPB appeal. It is undisputed that plaintiff withdrew his
appeal before the MSPB for no other reason than to proceed in the EEO
forum. (See Pl. Mot. Exh. 1 ¶ 24). Rather than acting in bad faith or
attempting to obstruct the administrative proceedings, plaintiff only
withdrew his claim because of the misinformation given to him by the MSPB
AJ.*fn1 See Jarrell v. U.S. Postal Service, 753 F.2d 1088, 1091-92
(D.C.Cir. 1985) (finding that plaintiff was excused for noncompliance
with filing requirements in Title VII case where "if is the result of
justifiable reliance on the advice of another government officer").
Although defendant had several opportunities to correct plaintiff's
mistakes, it failed to do so. First, as instructed, plaintiff indicated
on his formal EEO complaint that he had in fact appealed the same claims
to the MSPB. (Def.Mot.Exh. 4). This should have put defendant on notice
immediately that plaintiff's EEO complaint should be dismissed. Although
MD-110 does not require defendant to issue a dismissal simultaneously
with the acknowledgment if is required to send to a complainant
immediately upon receipt of the complaint, if is obvious that the EEOC
intended for agencies to notify complainants of dismissals shortly after
the formal complaint is received. There was no reason for defendant to
delay issuing a dismissal in this case. As reflected in defendant's
initial decision issued nearly three months later, after plaintiff's MSPB
appeal had already been dismissed with prejudice as withdrawn, the
agency's determination required almost no factual investigation.
Defendant's failure to take the simple step of dismissing the complaint
in a timely fashion further led plaintiff to believe that his complaint
was properly in the EEO forum.
Defendant also could have, and should have, remedied the problem of the
duplicative filings during the course of the MSPB proceedings. At the
April 13, 1998 telephone conference during which the MSPB AJ recorded
plaintiff's withdrawal, the MSPB AJ stated:
Now understand, Mr. Broom, that this withdrawal is
with prejudice which means that you can't come back
here if you change your mind. Then you can go ahead
and pursue your matters through the EEO forums as you
planned. Miss Henry, do you understand what has taken
(Def.Mot.Exh. 10). In response, agency counsel Henry responded, "I
understand that there has been a withdrawal," but said nothing further.
(Id.). Thus, defendant knew of plaintiff's intentions to continue
pursuing the complaint in the EEO forum, even though he was technically
prohibited from doing so. Although Henry states in an affidavit that she
asked the MSPB AJ whether defendant could do anything to prevent
plaintiff's withdrawal of his claim (Def. Mot. Exh. 11 ¶ 3), there is
no evidence in the record that she made any effort to correct both the
AJ's and plaintiff's misunderstanding that withdrawal would allow
plaintiff to proceed in the EEO forum. It is undisputed that plaintiff was
not represented by counsel when he executed the withdrawal of his MSPB
appeal. In light of agency counsel's superior knowledge of the
administrative complaint process and her awareness that plaintiff
was proceeding pro se at the time of the telephone conference, if is fair
to conclude that her silence contributed to his misunderstanding that he
could proceed in the EEO forum.
Finally, it is uncontested that plaintiff's actions throughout the
course of the administrative process have put defendant on notice of
plaintiff's discrimination claims, including the informal complaint filed
on May 19, 1997 regarding his proposed removal, the informal complaint
filed on October 30, 1997 with respect to the Last Chance Agreement he
refused to sign, his contact with an EEO counselor on January 7, 1998,
his participation in EEO counseling, his filing of an appeal with the
MSPB, his filing of a formal EEO complaint with the agency, his
withdrawal from the MSPB process with the express understanding that he
would be pursuing his claims in the EEO forum, and his compliance with
all deadlines and participation in all proceedings mandated by both the
MSPB and the agency. The claims that plaintiff now brings before the
Court are not new; the issues were all raised in the administrative
processes below. Therefore, defendant has had ample notice of plaintiff's
claims and the purposes of the exhaustion requirements have been
Clearly, the administrative proceedings both before the MSPB and in the
EEO forum were completed without any real consideration of the merits of
plaintiff's claims. Based on the record before the Court, it appears that
plaintiff is now foreclosed from pursuing those claims in either
administrative forum. While plaintiff attempted in good faith to navigate
defendant's administrative labyrinth, his efforts were foiled at every
turn. His rights were not clearly explained, the defendant failed to
comply with its policies, and a government official provided
misinformation to plaintiff that resulted in his making the fatal mistake
of dismissing the one administrative complaint that he was entitled to
pursue. Based on these "special equitable considerations," Siegel, 654
F.2d at 777, plaintiff is excused from exhausting his administrative
remedies. Therefore, defendant's motion is DENIED.