explanation as to why he had not been selected. Mr. Wandner
responded that Mr. Rann had not interviewed as well as Mr.
Messenger. See Compl. ¶ 23. Mr. Rann filed an informal
complaint of age discrimination with the DOL's Civil Rights
Center on April 23, 1998. See Mot. for Summ. J. at 3. He was
assigned an EEO counselor in May 1998 and participated in an
informal mediation process. See Compl. ¶ 25. This informal
counseling and mediation failed to resolve his situation, so Mr.
Rann filed a formal complaint of age discrimination in September
1998. See Compl. ¶ 26.
The DOL's Civil Rights Center accepted this formal complaint
for investigation in October 1998. Over the next six months, the
EEO office sent Mr. Rann multiple requests for an affidavit, an
initial step in the formal investigation. Mr. Rann never
provided the EEO investigator with this information. See Mot.
for Summ. J. at 46; Pl.'s Opp'n at 10-12. On June 7, 1999, the
DOL's Civil Rights Office dismissed Mr. Rann's complaint for
failure to prosecute. See Pl.'s Opp'n at 12. Three months
later, Mr. Rann filed a complaint in this court.
In January 2000, the defendant made an initial motion to
dismiss for failure to exhaust. This court denied that motion,
allowing the plaintiff to seek relevant discovery in response to
the defendant's non-cooperation allegation. See Mem. Op. dated
July 26, 2000. The defendant now renews its motion to dismiss or
for summary judgment. For the reasons that follow, the court
will grant the defendant's motion to dismiss.
A. Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(1), the
plaintiff bears the burden of establishing that the court has
jurisdiction. See District of Columbia Retirement Bd. v. United
States, 657 F. Supp. 428, 431 (D.C. 1987). In reviewing a motion
to dismiss for lack of subject-matter jurisdiction under
Rule 12(b)(1), the court must accept all the complaint's well-pled
factual allegations as true and draw all reasonable inferences
in the plaintiffs favor. See Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pitney Bowes v.
United States Postal Serv., 27 F. Supp.2d 15, 19 (D.C. 1998)
(Urbina, J.). The court is not required, however, to accept
inferences unsupported by the facts alleged or legal conclusions
that are cast as factual allegations. See, e.g., Lawrence v.
Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
Moreover, the court need not limit itself to the allegations
of the complaint. See Hohri v. United States, 782 F.2d 227,
241 (D.C.Cir. 1986), vacated on other grounds, 482 U.S. 64,
107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, "[t]he court may
consider such materials outside the pleadings as it deems
appropriate to resolve the question whether it has jurisdiction
in the case." Scolaro v. D.C. Bd. of Elections and Ethics,
104 F. Supp.2d 18, 22 (D.C. 2000) (citing Herbert v. National
Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir. 1992)).
B. ADEA Procedural Overview
The Age Discrimination in Employment Act is designed to
prevent arbitrary age discrimination in employment. See
29 U.S.C. § 621 et seq. The ADEA gives a person who is at least
40 years old the right to seek relief if she has been evaluated
by age rather than by ability. See 29 U.S.C. § 631. Under the
ADEA, a plaintiff may bring an age-discrimination claim to
federal court by either of two routes. The plaintiff may bring
the claim directly to federal court, provided that she files the
complaint within 180 days from the date of
the alleged discriminatory conduct and provides at least 30
days notice to the EEOC before commencing the suit. See
29 U.S.C. § 633a(b), (c) and (d). Alternatively, the plaintiff may
elect to pursue administrative remedies and, if the plaintiff is
dissatisfied with the result of the administrative proceedings,
the plaintiff may file suit in federal court once she has fully
exhausted her administrative remedies. See id.; Stevens v.
Department of Treasury, 500 U.S. 1, 5-6, 111 S.Ct. 1562, 114
L.Ed.2d 1 (1991) (describing two routes by which an ADEA claim
may be brought to federal court).
Because the court has already held that this plaintiff has
failed to allege facts sufficient to meet the requirements of
the first of these two routes, see Mem. Op. dated July 26,
2000, the only question remaining is whether he fully exhausted
his administrative remedies prior to filing suit in this court.
C. Failure to Exhaust Administrative Remedies
This court initially denied the defendant's motion to dismiss
for failure to exhaust administrative remedies so that it could
more fully examine the facts revolving around the plaintiffs
cooperation. In its first Memorandum Opinion, this court noted
that while the relevant portions of the ADEA statute,
29 U.S.C. § 633a(b) and (c), do not mention a cooperation requirement with
regard to the exhaustion of administrative remedies, cases from
this circuit and others state that a plaintiffs full cooperation
is crucial. For instance, in Osborne v. Hove, Dkt. No.
97cv1630, slip op. (D.C. Jan. 11, 1999) (HHK) (unpublished), the
court granted the defendant's motion to dismiss for lack of
subject-matter jurisdiction because it was "undisputed" that the
plaintiff refused to respond to the EEOC's requests for more
information. See id. at 7. In Osborne, an employee at the
FDIC alleged that he suffered race and sex discrimination. When
the investigator of his formal complaint requested more
information, the Osborne plaintiff refused to comply with
those requests, stating that further participation in the
administrative process would be futile. See id. at 3.
Similarly, the plaintiff in this case states that he failed to
produce an affidavit for the EEOC because "I thought it was a
losing proposition; that nothing productive could come of that;
that it would drag on forever, ever and ever." See Rann Dep.
at 85. The Osborne court held, however, that a plaintiffs full
cooperation is necessary in administrative proceedings in order
to have exhausted administrative remedies. "In the delicate area
of discrimination, `it is particularly important that the agency
develop a record and have the opportunity to exercise its
discretion, to apply its expertise, and, possibly, to discover
and correct its own errors.'" See Osborne, slip op. at 7
(quoting Jordan v. United States, 522 F.2d 1128, 1132 (8th
Cir. 1975)). Thus, the anti-discrimination purpose of the ADEA
is served by making a plaintiffs full cooperation in
administrative proceedings a key component of administrative
Under certain circumstances, futility may constitute an
exception to the requirement of exhaustion of administrative
remedies in the area of employment discrimination. See, e.g.,
Bachman v. Collier, 73 F.R.D. 300, 303 (D.C. 1976) ("This Court
would not require exhaustion if it concluded that said
exhaustion would be no more than a futile act."). The futility
exception is narrowly tailored, however, and a plaintiff bears a
heavy burden to establish that the futility exception applies to
his or her case. See, e.g., Callicotte v. Carlucci,
698 F. Supp. 944, 948 (D.C. 1988) ("This exception, as its name
indicates, applies `where following the administrative remedy
would be futile because of certainty of an adverse decision.'");
Butler v. Kleppe, 1975 WL 141, *1 (D.C. 1975).
The plaintiff in this case has not met his futility burden.
Indeed, discovery has revealed that the plaintiff has no tenable
excuse for his failure to prosecute. When the DOL's EEO office
first accepted the plaintiffs formal complaint, the office sent
him and his attorney a letter that specifically advised him:
it is your responsibility to cooperate with the EEO
Investigator in the presentation of your affidavit.
Without your statement, made under oath or
affirmation, concerning the allegedly discriminatory
agency actions about which you have filed your
complaint, it is difficult to proceed with the
investigation. You have the responsibility to provide
your completed affidavit within the time-frame
specified by the EEO Investigator. This serves as
notice being given pursuant to the EEO regulations at
29 C.F.R. § 1614.107(g), that if you failed to provide
requested information in the time specified by the
EEO investigator, your EEO complaint may be dismissed
for failure to prosecute.
Mot. for Summ. J., Ex. 2.
The plaintiff offers no legitimate reason for his deliberate
failure to pay heed to this and numerous subsequent warnings to
comply with formal complaint proceedings. His claim that
"[t]here was absolutely no need for such a sworn statement
because Mr. Rann's qualifications were a matter of record and
the evidence of discrimination was solely in the hands of the
agency and its officials" does nothing to justify his failure to
comply with procedural requirements. See Pl.'s Opp'n at 9. Nor
is the court persuaded by his argument that the EEO process is
"long [and] drawn-out." See Rann Dep. at 68-74. The D.C.
Circuit has rejected administrative remedy frustration as
grounds for a finding of administrative futility. See Cox v.
Jenkins, 878 F.2d 414, 419-20 (D.C.Cir. 1989) (holding that
"plaintiffs' frustrations with the administrative process,"
while understandable, did not justify failing to exhaust their
Because discovery has indicated that the plaintiff knowingly
and deliberately failed to comply with the EEO's formal
complaint procedures, and because the plaintiff has failed to
meet the heavy burden of establishing a futility exception, the
plaintiff has failed to exhaust his administrative procedures
fully before filing suit. Consequently, the court lacks
subject-matter jurisdiction over this case and grants the
defendant's motion to dismiss.
D. The Plaintiffs Additional Motions
The plaintiff seeks to appeal the decisions of Magistrate
Judge Deborah Robinson, which upheld the attorney-client
privilege for conversations conducted before and during the
depositions of Mr. Wandner and Mr. Messenger, respectively.
Because the court lacks subject-matter jurisdiction over this
case, the court denies these discovery-related motions as moot.
For the same reasons, the court need not address the plaintiffs
motion for leave to strike Audrey Smith's Declaration.
Finally, the plaintiff now moves the court for leave to file a
surreply brief since he contends that the defendant's reply
brief raises new arguments. Even assuming arguendo that the
defendant's reply brief did raise new arguments, the arguments
that the plaintiff points to in his motion for leave to file a
surreply all relate to the actual merits of the case. Since the
court lacks subject-matter jurisdiction to hear the case, the
court denies this motion as moot.
For all these reasons, the court grants the defendant's motion
to dismiss. An Order directing the parties in a fashion
consistent with this Memorandum Opinion is separately and
contemporaneously issued this 20 day of August, 2001.
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
For the reasons stated in the court's Memorandum Opinion
issued separately and contemporaneously this 20 day of August,
2001, it is
ORDERED that the defendant's motion to dismiss or, in the
alternative, for summary judgment shall be and hereby is
GRANTED; and it is
FURTHER ORDERED that all other motions are hereby DENIED as