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Thomas Mckeithan v. William A. Boarman

August 17, 2011


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Thomas McKeithan has sued William Boarman*fn1 in his official capacity as Public Printer for the Government Printing Office, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Boarman has moved to dismiss McKeithan's claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Mot. to Dismiss the Am. Compl. (Def.'s Mot.) at 1.) For the following reasons, defendant's motion will be granted.


McKeithan worked for the Government Printing Office ("GPO") for more than forty-two years, where he developed a "fine work record and an excellent reputation." (Am. Compl. ¶ 3.) McKeithan alleges that this sterling record was tarnished because of his supervisor, Randy Wilson. (Id.) McKeithan spoke with Wilson several times about the "errors of sexually harassing women in the workplace and the offensive effect of such behavior on the plaintiff" and, when Wilson "seemed to ignore" these requests, McKeithan "complained" to Alphonzo Woods, who supervised both McKeithan and Wilson. (Id. ¶¶ 6-7.) Woods assured McKeithan that "he spoke to Mr. Wilson in strong language about stopping his inappropriate sexually harassing behavior." (Id. ¶ 8.) After McKeithan made these complaints, in August 2009, Wilson "called over" to McKeithan to "see his new cell phone," which displayed a "photograph of a nude woman in a pornographic pose." (Id. ¶ 9.) McKeithan told Wilson that "he was not interested in such behavior," even though, according to McKeithan, Wilson already knew that the photo was "objectionable." (Id. ¶¶ 10, 13.) McKeithan reported the incident to Wilson's supervisors, to the GPO police, to the office of Human Resources, and to the GPO Office of Inspector General. (Id. ¶ 14.) As a result, Wilson was disciplined. (Id. ¶ 16.)

McKeithan alleges that two days after he reported Wilson's conduct, Wilson falsely accused him of "unprofessional and discourteous conduct toward another supervisor." (Id. ¶ 17.) McKeithan was subsequently disciplined for the first time in his career. (Id. ¶¶ 17, 20.) McKeithan also complained to his supervisors that Wilson told him that Wilson's wife "monitor[ed] the movements of GPO employees who worked for her husband." (Id. ¶ 21.) Next, Wilson told one of McKeithan's co-workers that he planned to call McKeithan's wife and falsely inform her about an affair McKeithan was having. (Id. ¶ 22.) A month later, McKeithan was given a rating of "Meets Expectations," after years of receiving consistently "Outstanding" ratings. (Id. ¶¶ 25-26.) That same month, McKeithan was moved to a new office building. (Id. ¶ 28.) McKeithan's office was moved six times in the following months, at Wilson's behest. (See id.) Wilson also placed restrictions on McKeithan's ability to visit the personnel office and imposed other unusual requirements on McKeithan. (Id. ¶¶ 32-34.) As a result, McKeithan retired. (Id. ¶ 38.)

In February 2010, McKeithan contacted a counselor in the Office of Equal Employment Opportunity ("EEO") and complained about Wilson's actions. (Id. ¶ 42.) On April 1, 2010, he filed a formal EEO complaint that alleged discrimination on the basis of sex, age, and religion, but did not formally make a claim of retaliation. (Id.) On April 6, 2010, the EEO accepted his complaint for processing. (Def.'s Mot., Ex. B, at 1.)*fn2 However, in its order accepting his complaint for investigation, the EEO identified only McKeithan's age-related discrimination claim, and advised that if McKeithan "believe[d] the claim in this complaint has not been correctly identified," he was to contact the EEO within ten days and "specify why [he] believe[d] the claims have not been correctly identified." (Id.) The EEO warned McKeithan that "if [he] fail[ed] to contact" the investigator, he would "conclude that [McKeithan] agree[d] that the claims have been properly identified." (Id.) On October 24, 2010, McKeithan signed an affidavit provided by an EEO investigator in which he affirmed that the "accepted issue[] for investigation" was his age-related discrimination claim. (Def.'s Mot., Ex. C, at 1.) In this affidavit, McKeithan stated that he believed he "was discriminated and subjected to a hostile work environment based on my age because none of the younger people" were treated in the way that he was. (Id. at 5.)

McKeithan filed suit on January 13, 2011. (Compl. at 1.) After answering McKeithan's complaint, Boarman moved to dismiss on May 25. (Dkt. No. 11.) While this motion was pending, McKeithan filed a consent motion requesting permission to amend his complaint to add "factual bases for holding Defendant responsible for unlawful acts of retaliation" (Pl.'s Mot. for Leave to File an Am. Compl. [Dkt. No. 16] at 4-5), which the Court granted on June 27. McKeithan's amended complaint was filed on June 28. (Am. Compl. (Dkt. No. 17).) Because the filing of a new complaint rendered Boarman's motion to dismiss moot, the Court denied it without prejudice. (Mem. Op. & Order, July 7, 2011 (Dkt. No. 19).) Boarman has now re-filed his motion to dismiss. (Def.'s Mot. to Dismiss the Am. Compl. ("Def.'s Mot.").)



To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" such that a court may "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). In ruling on a 12(b)(6) motion, a court may consider facts alleged in the complaint, documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the complaint and integral to a claim. U.S. ex rel. Folliard v. CDW Tech. Servs., Inc., 722 F. Supp. 2d 20, 24-25 (D.D.C. 2010).


Boarman argues that McKeithan failed to exhaust his gender and religious discrimination claims and his retaliation claim because he did not contest the EEO's finding that he had only raised a valid age discrimination claim. (Def.'s Mot. at 7-8.) A plaintiff alleging a violation of his civil rights by a federal agency under Title VII must "initiate his . . . complaint with the agency."*fn3 Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983). Moreover, the EEO has "established detailed procedures for the administrative resolution of discrimination complaints" which "[c]omplainants must timely exhaust . . . before bringing their claims to court." Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).

McKeithan admits that he did not include retaliation as a claim in his EEO complaint (Compl. ¶¶ 39-41), and he does not argue that his administrative complaint could be interpreted to raise a retaliation claim. (See generally Pl.'s Opp'n.) He does, however, argue that he "exhausted his Claims based on Sex and Religion," but he supports this novel and unsupported argument by asserting that the EEO lacks the authority to frame the issues he raised in his administrative complaint. (Id. at 8-11.) But the simple fact that the EEO's process is not "set by Congress or by a single court" (Pl.'s Opp'n at 8) does not make it irrelevant. "Compliance with the administrative procedures is required." Chaple v. Johnson, 453 F. Supp. 2d 63, 69 (D.D.C. 2006) (granting summary judgment to the government where plaintiff failed to seek EEO counseling within 45 days of an adverse employment action, as required by EEO regulations). The Court cannot simply "permit a litigant to bypass the Title VII administrative process." Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Thus, "[d]ismissal is required when a plaintiff fails to exhaust his administrative remedies with respect to particular claims." Ndondji v. InterPark, Inc., 768 F. Supp. 2d 263, 276-77 (D.D.C. 2011).As explained herein, McKeithan failed to follow the administrative process and, therefore, arguably failed to exhaust his claims.

In response, McKeithan argues that the EEO failed to follow its own procedures by omitting his other claims in the notice accepting his complaint because he met all timing requirements and because it failed to identify the reasons for "dismissing both the sex and the religion claims." (Pl.'s Opp'n at 10-11.) However, McKeithan did not challenge the EEO's letter when he received it. In effect, he abandoned his religious discrimination, gender discrimination, and retaliation claims at the administrative level and thereby failed to exhaust them. This conclusion is consistent with the decisions of other courts that have confronted this or similar issues. For instance, courts have generally held that "failure to respond to the framing of the issue supports a finding that" a plaintiff has failed to exhaust his administrative remedies with respect to those claims not approved by the EEO. See Sellers v. Dep't of Def., No. 07-418S, 2009 WL 559795, at *11-*12 (D.R.I. Mar. 4, 2009); Silver v. Leavitt, No. 05-0968, 2006 WL 626928, at *9 (D.D.C. Mar. 13, 2006) (plaintiff failed to exhaust remedies with respect to claims that "were not accepted for investigation at the administrative level"); Green, 2006 WL 148740, at *5-*6 (plaintiff had not exhausted retaliation claims when he failed to include them in his initial complaint and "made no attempt to augment the 'accepted allegation' or amend his complaint prior to the conclusion of the investigation . . . despite the . . . express invitation to do so"); Robinson v. Chao, 403 F. Supp. 2d 24, 29 (D.D.C. 2005) (plaintiff who made claims of discrimination in her administrative complaint "had an obligation to respond to reasonable requests in the course of the agency's investigation of her discrimination claims," but failed to do so and therefore "did not exhaust her administrative remedies concerning those claims"); Clayton v. Rumsfeld, No. SA-02-CA-231, 2003 WL 25737889, at *3 (W.D. Tex. Aug. 8, 2003) ("[f]ailure to object to the framing of the issue by the EEOC and the ALJ constitutes an abandonment of the claim"). As was the case with these plaintiffs, McKeithan failed to ...

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