United States District Court, District of Columbia
RANDOLPH S. KOCH, Plaintiff,
ELISSE B. WALTER, Chairman, Securities and Exchange Commission, Defendant. 
[Copyrighted Material Omitted]
RANDOLPH S. KOCH, Plaintiff, Pro se, Rockville, MD.
For MARY L. SCHAPIRO, In her official capacity as chairman, U.S. Securities and Exchange Commission, Defendant: Fred Elmore Haynes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
PAUL L. FRIEDMAN, United States District Judge.
In this employment discrimination lawsuit, plaintiff Randolph S. Koch has charged his former employer, the Securities and Exchange Commission (" SEC" ), with violating various provisions of the Rehabilitation Act, the Age Discrimination in Employment Act (" ADEA" ), and Title VII of the Civil Rights Act of 1964. On March 29, 2010, the Court dismissed all but two claims in this case. Koch v. Schapiro, 699 F.Supp.2d 3, 6 (D.D.C. 2010). This matter is now before the Court on the SEC's motion for summary judgment on the two remaining claims. The SEC contends that Mr. Koch failed to exhaust his administrative remedies and therefore cannot bring this case in federal court. Upon consideration of the parties' papers, the relevant legal authorities, and the entire record in this case, the Court will grant the SEC's motion. 
A. Procedural History
Randolph Koch, a white, Jewish male, worked as a financial analyst at the SEC from December 16, 1991 until after this lawsuit was filed in August 2008. Compl. ¶ ¶ 4, 6, 8. Mr. Koch alleges that he suffers from cardiovascular disease, obstructive sleep apnea, and gout, among other medical conditions. Id. ¶ 6. At the time of the events giving rise to this action, Mr. Koch was over 40 years of age. Id. Mr. Koch has filed several lawsuits against the SEC and other government agencies alleging instances of discrimination and retaliation under the Rehabilitation Act, the ADEA, and Title VII. Id. ¶ 7. See, e.g., Koch v. Holder, 930 F.Supp.2d 14, 2013 WL 953368 (D.D.C. Mar. 13, 2013); Koch v. Schapiro, 777 F.Supp.2d 86 (D.D.C. 2011); Koch v. Schapiro, 759 F.Supp.2d 67 (D.D.C. 2011); Koch v. Donaldson, 260 F.Supp.2d 86 (D.D.C. 2003).
In the present action, Mr. Koch claims that SEC managers subjected him to discriminatory and retaliatory actions based
on his various protected statuses under the Rehabilitation Act, Title VII and the ADEA, and because of his prior involvement in protected activities. Compl. ¶ 22. He also alleges that the agency failed to provide reasonable accommodations for his disabilities under the Rehabilitation Act. Id. He asserts that the aggregate of these actions was sufficient to create a hostile work environment. Id.
In its March 29, 2010 decision, this Court granted in part and denied in part the SEC's motion to dismiss the complaint. Koch v. Schapiro, 699 F.Supp. at 6. The Court's decision narrowed the issues in this action to two claims: whether SEC managers acted in a discriminatory and retaliatory manner (i) when they imposed a " curfew" on Mr. Koch, under which he was required to leave SEC premises at a certain time each day, and (ii) when they issued him a formal letter of reprimand. Id. at 15; see also Compl. ¶ ¶ 13, 15, 22; Def.'s Stmt. Mat. Facts ¶ ¶ 3-4. The Court noted that its decision left open the preliminary question of whether Mr. Koch had exhausted his administrative remedies before presenting these claims in this Court. Koch v. Schapiro, 699 F.Supp.2d at 12-13. Accordingly, the Court denied without prejudice the SEC's motion to dismiss those claims and permitted limited discovery on those issues. Id. at 15.
On August 26, 2010, the SEC filed a motion for summary judgment as to the two remaining claims.  It contends that Mr. Koch failed to exhaust his administrative remedies because he did not timely initiate contact with an Equal Employment Opportunity (" EEO" ) counselor as required by 29 C.F.R. § 1614.105(a)(1) (2012). Def.'s Mot. at 2-3. In addition, the SEC argues that Mr. Koch's refusal to cooperate with the EEO counselor he eventually contacted constituted a failure to exhaust the administrative counseling requirement. Id. at 3.
B. Administrative Counseling of Mr. Koch's Claims
A timeline of the relevant administrative proceedings follows:
On September 15, 1999, SEC management gave Mr. Koch a work departure directive (the " curfew" ), under which Mr. Koch was required to leave the SEC by a certain time each day. Compl. ¶ 13; Def.'s Stmt. Mat. Facts ¶ 3. On October 13, 1999, SEC management issued Mr. Koch a formal reprimand, which he believes was undeserved and unjustified and given in part in retaliation ...