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Randolph S. Koch v. Mary Schapiro

January 6, 2011


The opinion of the court was delivered by: Jack D. Shanstrom Senior U.S. District Judge


Presently before the Court is the Defendant's Motion to Dismiss and, in the alternative, for Summary Judgment. A hearing was held on April 20, 2010 wherein Plaintiff was represented by Attorney Ellen Renaud and Defendant was represented by Marina Utgoff Braswell. After having considered the Parties oral arguments and reviewed the submitted briefs, this Court is prepared to render a ruling at this time.


Plaintiff Randolph Koch began his employ with the U.S. Securities and Exchange Commission ("SEC") in December 1991 as a financial analyst. He worked in Branch 16 of the SEC's Office of Disclosure and Review ("ODR"). He reported to Frank Donaty, the Chief of Branch 16. Until 1993, Donaty reported to Carolyn Lewis, Assistant Director of ODR. Donaty also reported to Gladwyn Goins, the Associate Director of Division Investment Management ("DIM"), of which ODR was a part of.

In his financial analyst role, Plaintiff's duties were to review corporate submissions and registration statements that were provided to the SEC. In addition, because Plaintiff also had a law degree, he was also asked to provide a limited review of SEC filings from a legal perspective. Plaintiff alleges that this created a greater workload for him than his fellow financial analyst colleagues. In 1993, he had discussions with his superiors regarding changing his personnel classification from a financial analyst to that of a staff attorney position. However, because the change in classification included a change from competitive service to excepted service, the classification change would include certain restrictions and a probationary period.

Prior to his employment with the SEC, Plaintiff had suffered a heart attack. At the beginning of his employ with the SEC, Plaintiff was able to maintain the alleged heavier workload despite his heart condition. Beginning in 1992, Plaintiff claims that his normal financial workload in addition to his legal workload began to take a toll on his heart condition. He informed his superiors of his health issues. He contends that they did not decrease his workload.

In April or May of 1994, Plaintiff requested that his heart condition be accommodated and that he be allowed to work on a flexible or "gliding" schedule. In addition, Plaintiff alleges that prior to their denial of the accommodation, his superiors did not relay his request to human resources.

One week after Plaintiff's accommodation request, Plaintiff's superior Frank Donaty asked Plaintiff to provide medical information from his physician to support his accommodation requests relating to his heart condition. Plaintiff's physician, Dr. Kuhn, complied and provided a letter noting Plaintiff's history of cardiac disease which included a heart attack, hyperlipidemia and hypertension. That letter further noted that Plaintiff's heavy work load and hours put him at a "high risk of recurrent cardiac events" and recommended that his work load be lightened to forty hours per week and that it be made to be "more flexible" so that Plaintiff might participate in a cardiac rehabilitation program. Further, Plaintiff claims that he suffers from sleep apnea which makes it difficult for him to wake up in the morning.

Donaty responded to Dr. Kuhn's letter regarding Plaintiff's health recommendations and care accommodations. In the letter, Donaty contested Plaintiff's claim of a heavy workload as well as concluding that an accommodation was not necessary given the predominantly sedentary nature of Plaintiff's work. In addition, Donaty requested that Dr. Kuhn provide additional information regarding Plaintiff's medical issues. The record reflects that Dr. Kuhn never responded to Donaty's request nor that Plaintiff attempted to procure the requested additional information. Donaty acknowledges that, contrary to Dr. Kuhn's recommendations, he never reassigned work for Plaintiff in order to accommodate Plaintiff's medical conditions. Ultimately, the Plaintiff's accommodation request was denied.

Goins, Donaty's supervisor, read Dr. Kuhn's letter to say that Plaintiff needed an accommodation because of his "weight problem." Consequently, he concluded that Plaintiff did not present any sort of a recognized physical ailment where an accommodation was necessary.

In light of his superiors' decisions to not provide Plaintiff with a medical accommodation, Plaintiff began to request use of credit hours, compensatory time and leave time. Plaintiff claims that Defendant had a policies for compensatory time and credit hours that allowed employees to earn credit for extra hours at their convenience and then use the credit hours in place of leave. Plaintiff claims that Defendant impermissibly denied him this option.

During that same period, Plaintiff began to seek counseling from the Equal Employment Office (EEO) for his denial of promotion/conversion to the GS-13 staff attorney position as well as denial of an accommodation for his heart condition. He informed his superiors of his intent to complain regarding this alleged discrimination. He alleges that his decision to engage in this protected activity (report of discrimination) angered his superiors and they retaliated against him by, among other things, giving him poor performance evaluations starting in July of 1993. He also alleges that he received a negative evaluation in May 1994.

The record reflects that from 1993 through 1998, Plaintiff was receiving at least as high performance evaluations ratings as other financial analysts in his branch. Plaintiff has never received an unsatisfactory rating.

Also during this same period, Plaintiff was negotiating reassignment from his current position of financial analyst to that of a GS-13 staff attorney. However, the human resources office noted that since Plaintiff had no prior legal securities experience, he could not be converted to a staff attorney unless he serve a year probationary period and relinquish his M.S.P.B. rights (Merit System Protection Board) for two years and accept a lower starting GS-12 staff attorney position. Plaintiff cites to at least two employees that were excepted from the probationary and waiver of M.S.P.B. rights requirements. Defendant responds by stating that those instances were an oversight and do not reflect a policy or norm within the SEC. In addition, Defendant notes that other financial analysts have accepted offers similar to that offered to the Plaintiff.

Lastly, in March of 1996, Defendant posted a vacancy announcement for a GS-13 Financial Analyst position in ODR's Branch 22 office. One of the requirements of the announcement was that the applicant must have an undergraduate degree in a related field. Plaintiff complained to the personnel office that the language of the announcement made him ineligible even though he had a graduate degree in a related field. Personnel agreed and informed Plaintiff that they would repost the position with the appropriate corrections. However, according to Plaintiff, although the position was reposted, it was not announced thru the normal channels. Plaintiff alleges that because Defendant did not post the vacancy announcement pursuant to its normal procedures, he did not become aware of the posting until the day before the application was due and therefore did not have sufficient time to complete the application.

Plaintiff's present discrimination, retaliation and failure to accommodate claims are brought under the Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act and the Age Discrimination in Employment Act.


Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To 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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 1955. The issue on a motion to dismiss is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Twombly, 550 U.S. at 583 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

When considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court employs a two-pronged approach. Id. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. In other words, "a plaintiff must aver in his complaint 'sufficient factual matter, accepted as true, to state a claim that is plausible on its face.' " al-Kidd v.Ashcroft, No. 06-36059, 2009 WL 2836448, at *5 (9th Cir. Sept. 4, 2009) (quoting Iqbal,129 S.Ct. At 1949). Courts must accept as true all facts alleged in the complaint and draw reasonable inferences in favor of plaintiff. Newcal Indus., Inc. v. Ikon Office Solutions, 513 F.3d 1038, 1043 (9th Cir. 2008).

In the alternative to a motion to dismiss, Defendant seeks summary judgment on Plaintiff's present claims. Where no genuine dispute exists as to any material fact, summary judgment is required. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A genuine issue of material fact is one that would change the outcome of litigation. Id. At 247. "The burden on the moving party may be discharged by 'showing' -- that is, pointing out t the [Court] -- that there is an absence of evidence to support the non-moving party's case." Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987).

Once the moving party has met its burden, the non-movant may not rest on mere allegations, but must instead proffer specific facts showing that a genuine issue exists for trial. Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, to avoid summary judgment here, Plaintiff (as the non-moving party) must present some objective evidence that would enable the Court to find he is entitled to relief. In Celotex Corp. v. Catrett, the Supreme Court held that, in responding to a proper motion for summary judgment, the party who bears the burden of proof on an issue at trial must "make sufficient showing on an essential element of [his] case" to establish a genuine dispute. 477 U.S. 317, 322-323 (1986). In Anderson, the Supreme Court further explained that "the mere existence of a scintilla of evidence in support of the Plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the Plaintiff." Anderson, 477 U.S. At 252; see also Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor).


Plaintiff brings claims that he has been discriminated against because of (1) his Jewish ethnicity; (2) his heart condition; (3) the fact that he is over 40 years old; and (5) his complaints to the Equal Employment Office. Presently before the Court is the Defendant's combined Motion to Dismiss and Motion for Summary Judgment.

Motion to Dismiss

Defendant contends that this Court lacks jurisdiction over many of Plaintiff's claims because he has failed to exhaust these claims at the administrative level before bringing them before this Court. Defendant contends that a plaintiff may not raise, for the first time, a claim in district court that was not raised in an administrative complaint or reasonably related to ...

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