The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Christopher W. Hansen, a caucasian employee of the Library of Congress, sues James H. Billington, Librarian of Congress, for alleged race, age, disability, and/or reprisal discrimination in violation of Title VII of the Civil Rights Act of 1974, as amended ("Title VII"), 42 U.S.C. § 2000e, et seq.; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Mr. Hansen also claims a hostile work environment. Mr. Billington moves to dismiss part of the Amended Complaint for the alleged failure of Mr. Hansen to exhaust his administrative remedies as to certain of the claims. See Def.'s Mem. In Supp. of Mot. to Dismiss ("Def.'s Mem.") [Dkt. # 16].
Mr. Hansen has been employed by the Library of Congress for over 24 years. He is currently working as a Contracting Specialist. He was born on March 21, 1954, and he suffers from various medical problems that are irrelevant to the matters at hand.
Mr. Hansen alleges that he is the longest-serving contract officer in the history of the Library and that he has been recognized multiple times for his achievements. Nonetheless, he complains, he was not selected for promotion in August 2005 under vacancy announcement ('VA") 05-0168 and, instead, the Library promoted an African American male who had worked there for about six months. Am. Compl. ¶ 9a. He also complains that he applied for promotion in late 2005 in response to VA-05-0233, after he had submitted a complaint alleging a failure of equal employment opportunity ("EEO") in his non-selection under VA-05-0168, but the announcement was withdrawn because all candidates were "unworthy." Id. ¶ 9b. Further, he complains that he applied for promotion in 2006 under VA-06-0078, but an African American male with no contracting experience with the Library was selected. Id. ¶ 9c.
As indicated above, Mr. Hansen filed applications under three vacancy announcements: VA-05-0168; VA-05-0233; and VA-06-078. When he was not selected for any of the vacancies, he filed three EEO complaints, which the Library designated as EEO Case Nos. 06-11, 06-31, and 07-01, respectively.
A. EEO Case No. 06-11 (non-selection for VA-05-0168)
On December 16, 2005, the Library selected Jackie Johnson, an African American male, instead of Mr. Hansen for the position of Contracting Specialist, which had been advertised as VA 05-0168. See Def.'s Mem., 1 (Allegation of Discrimination). Mr. Hansen contacted the Library's EEO Complaints Office ("EEOCO") on December 22, 2005,*fn1 and, on or about February 5, 2006, he filed a formal complaint alleging discrimination based on race and age in his non-selection. See id. at 3.
The parties agree that the Library has adopted rules and regulations concerning employment matters, including a regulation that requires a Library staff member who believes that s/he has been discriminated against to contact the EEOCO "not later than 20 workdays after the date of the alleged discriminatory matter." See id., Ex. 8 (Library of Congress Regulation ("LCR") 2010-3.1 § 4.A, Resolution of Problems, Complaints, and Charges in Library Employment and Staff Relations Under the Equal Employment Opportunity Program); See also Cook v. Billington, 541 F. Supp. 2d 358, 364 (D.D.C. 2008) (noting that "[p]ursuant to the Library's regulations, employees must file an administrative complaint with the EEO Office within twenty days of the allegedly discriminatory event").*fn2 Mr. Hansen's complaint concerning his non-selection under VA 05-0168 (based on race discrimination and age) was, therefore, timely, and Mr. Billington does not argue otherwise. However, Count 1 also alleges a "hostile work environment" and non-selection in 2006, both of which are claims Mr. Billington argues were never timely made in the administrative process.
B. EEO Case No. 06-31 (reprisal/retaliation for allegedly hostile email)
Mr. Hansen contacted the EEOCO on May 26, 2006, and filed a second formal complaint of discrimination on June 26, 2006. This complaint alleged that he had received hostile electronic mail from his supervisor and that these hostile emails were sent in retaliation for his filing of EEO Case No. 06-11. See id., Ex. 2 (Allegation of Discrimination) ("[A]s I was reading two hostile memos addressed to me from Ms. Ursula Holmes she called me on the telephone to tell me I could not respond to emails and memos on Library time but had to do it on personal time at home. I told her that if it was government business it had to be responded to on government time. Ms. Holmes again said it was not to be done during working hours.") & Ex. 3 (Complaint of Discrimination) (same).
The EEOCO issued a decision on July 6, 2006, refusing to accept the complaint for processing based on Mr. Hansen's failure to identify any adverse action that caused him harm. See id., Ex. 4 (July 6, 2006, Letter from Jean Y. Johnson, Acting Assistant Chief, EEOCO). The letter from the EEOCO informed Mr. Hansen of his right to appeal the decision to the Chief of the EEOCO, but Mr. Hansen did not file any appeal.
In the meantime, Mr. Hansen had applied for the position listed in VA 05-0233. Am. Compl. ¶ 9b. On February 17, 2006, the Library canceled VA 05-0233 and the position was not filled. Id. However, Mr. Hansen's second EEO complaint made no mention of these facts and he filed no claim that his non-selection in that instance was illegal under Title VII, the ADA, or the ADEA.
C. EEO Case No. 07-01 (reprisal; non-selection for VA 06-0078)
Mr. Hansen did file a claim of discrimination on October 2, 2006, alleging that his non-selection for the position advertised in VA 06-0078 was illegal reprisal for his previous EEO activity. See Def.'s Mem., Ex. 6 ...