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Hayes v. Chao

April 2, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Victor Hayes ("Hayes"), proceeding pro se, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against Elaine L. Chao, in her official capacity as Secretary of the United States Department of Labor (the "Secretary"). Hayes, a former employee of the Department of Labor ("DOL"), claims that he was a victim of discrimination and retaliation because (1) several DOL employees incorrectly told him that an audit of his sick and annual leave balances had been performed in 2003, and (2) a DOL audit completed in June 2005 identified a 15-minute discrepancy in his leave balances. According to Hayes, this uncertainty has left him "in limbo" about whether to re-enter federal employment until the issues concerning his annual and sick leave balances "ha[ve] been resolved to his satisfaction." Compl. ¶¶ 36-37. Currently pending before the Court is Defendant's [8] Motion to Dismiss Hayes' Complaint based on the applicable statute of limitations, failure to exhaust administrative remedies, and failure to state a claim. After a thorough review of the Parties' submissions, applicable case law and statutory authority, the Court shall grant Defendant's Motion for the reasons that follow.


The Court construes Hayes' pro se complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In doing so, the Court notes that Hayes has attached supplemental materials to his Complaint and his Opposition, and the Secretary has also attached supplemental materials to her Motion to Dismiss.*fn1 The D.C. Circuit has instructed that lower courts may use supplemental materials to clarify a pro se plaintiff's claims without converting a motion to dismiss into one for summary judgment. See Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007) (explaining that lower courts may "consider supplemental material filed by a pro se litigant in order to clarify the precise claims being urged") (citing Anyanwutaku v. Moore, 151 F.3d 1053, 1054 (D.C. Cir. 1998)). Courts may also consider documents attached to, or incorporated into, complaints (pro se or otherwise), as well as certain documents in the public record. See Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (affirming lower court's reliance on an administrative record when deciding a motion to dismiss, where the court used the record to resolve legal questions and not to test factual allegations in the complaint); Koutny v. Martin, 530 F. Supp. 2d 84, 89 (D.D.C. 2007) (explaining that a court may take notice of public documents, such as court records, when deciding a motion to dismiss). Based on the Court's review of Hayes's Complaint and the Parties' supplemental materials, Hayes appears to allege the following.

Hayes worked as an economist for the DOL from July 20, 1997 until December 13, 2002.*fn2 Compl. ¶ 4. Although Hayes worked for one or more private employers since leaving the DOL, he began "preparing to re-enter federal employment" in April 2005. Id. ¶¶ 7-8. Hayes was concerned that his sick and annual leave balances were inaccurate, a problem that he discussed with his supervisors prior to leaving his position at the DOL in 2001 and 2002. Id. ¶ 8; Pl.'s Opp'n, Exs. 3-5 (emails from Hayes to his supervisors raising concerns about his sick and annual leave balances). Accordingly, Hayes decided to "verify that Defendant DOL had corrected his annual and sick leave balances after his separation of employment." Id. ¶ 8. Hayes sent an email to the DOL on April 27, 2005, asking about his leave balances. Id. ¶ 9. The DOL initially responded to Hayes by explaining that it could not, or had not, located his Official Personnel File ("OPF"), which might contain an audit of his leave balances. Id.

Hayes claims that the DOL began "surreptitiously" auditing his leave balances after receiving his April 27, 2005 email. Id. ¶¶ 9-11. Based on his suspicions that the DOL "was being discriminatory against him regarding the missing audit," Hayes contacted the DOL's Civil Rights Center ("CRC"), which advised him to try resolving his concerns directly with the agency. Id. ¶¶ 14-15. On May 6, 2005, Hayes sent another email to the DOL explaining that he was concerned about his leave balances. Id. ¶ 16. On May 9, 2005, the DOL responded to Hayes' email and indicated that the DOL was in possession of an audit of Hayes' leave balances that was purportedly in existence as of April 11, 2003. Id. ¶ 19. Hayes claims that this audit does not exist, and that the DOL lied to "stall for time and circumvent the EEO process" while the audit of Hayes' leave balances "was clandestinely being completed." Id. ¶ 21. Hayes claims that the DOL repeated this "stalling tactic" in June 2005 by again informing him of a nonexistent audit that was in the DOL's possession as of May 2005. Id. ¶ 24.

The DOL completed its audit of Hayes' leave balances on June 1, 2005, "confirming a 1/4 hour discrepancy in [] Hayes' sick leave balance [that] was based on inaccurate starting annual and sick leave balances." Id. ¶ 25. In addition to the 15-minute discrepancy, Hayes also faults the June 2005 audit because it did not reveal any missing annual leave "that represents compensation to [] Hayes when he returns to federal employment." Id. ¶ 26. Hayes further claims that Mike Allen, a DOL employee, admitted in December 2005 that there was not an audit of Hayes' leave balances in existence as of April 2003, which suggests to Hayes that "several of [the] DOL's employees lied regarding the existence of a signed and verified audit" of Hayes' leave balances. Id. ¶¶ 28-30.

Hayes alleges that he has been "in limbo since April 2005 regarding reentering federal employment until this issue regarding his annual and sick leave balances has been resolved to his satisfaction." Id. ¶ 36. Hayes further alleges that the DOL's "brazen lies regarding the existence of an audit" and its "inaccurate June 1, 2005 audit" has caused Hayes "inconvenience, loss of income due to missed federal job opportunities, and irreparable damages to his federal leave balances, especially his annual leave balance that represents compensation when he returns to federal employment." Id. ¶ 37.

The Secretary filed a Motion to Dismiss Hayes's Complaint for failure to state a claim on July 16, 2007. Hayes filed an Opposition to the Secretary's Motion on October 1, 2007, and the Secretary filed a Reply on October 26, 2007. The Motion has thus been fully briefed and is ripe for decision.


The Federal Rules of Civil Procedure require that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted).

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ("The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). Where, as here, an action is brought by a pro se plaintiff, the Court must take particular care to construe the plaintiff's filings liberally for such complaints are held "to less stringent standards than formal pleadings drafted by lawyers." Haines, 404 U.S. at 520-21. See also Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). "Nonetheless, a pro se complaint, like any other, must present a claim upon which relief can be granted by the court." Henthorn v. Dep't of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994) (quoting Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)).


Giving Hayes the benefit of all possible inferences, and construing his Complaint liberally as a pro se plaintiff, the Court identifies three possible claims: (1) discrimination and retaliation based on the DOL's "brazen lies" concerning an audit of Hayes's leave balances in 2003; (2) discrimination and retaliation based on a 15-minute discrepancy of Hayes's leave balances identified by a June 2005 audit; and (3) injuries based on unidentified annual leave that was not revealed by the June 2005 audit. In the context of these claims, the Secretary raises three arguments based on the: (1) statute of limitations; (2) failure to exhaust administrative ...

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