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, United States Securities and Exchange Commission, Defendant: Fred Elmore Haynes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
PAUL L. FRIEDMAN, United States District Judge.
This matter is before the Court on defendant's motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the
alternative, for summary judgment under Rule 56. Plaintiff, Randolph S. Koch, has charged his employer, the Securities and Exchange Commission (" SEC" ), with violating various employment discrimination statutes. The defendant asserts that Mr. Koch's claims must be dismissed for failure to exhaust his administrative remedies. After careful consideration of the parties' papers, the relevant legal authorities, and the entire record in this case, the Court will grant the motion in part and deny it in part. 
Randolph Koch worked as a financial analyst at the SEC between December 1991 and October 2009. Compl. ¶ ¶ 4, 8. Mr. Koch is a white, Jewish male over the age of forty, and he asserts that he suffers from a variety of disabling medical conditions. Id. ¶ 6. Based on these protected statuses, Koch has initiated various administrative and civil proceedings against the SEC and other government agencies for alleged violations of the Rehabilitation Act, the Age Discrimination in Employment Act (" ADEA" ), and Title VII of the Civil Rights Act of 1964. Id. ¶ 7; see also Koch v. Holder, 930 F.Supp.2d 14, 2013 WL 953368 (D.D.C. Mar. 13, 2013); Koch v. Schapiro, 759 F.Supp.2d 67 (D.D.C. 2011); Koch v. Schapiro, 699 F.Supp.2d 3 (D.D.C. 2010); Koch v. Donaldson, 260 F.Supp.2d 86 (D.D.C. 2003). The present action arises from the SEC's alleged retaliation against Mr. Koch for his participation in these various proceedings, as well as the SEC's alleged violations of the Rehabilitation Act's confidentiality provisions.
In November 2008, Mr. Koch learned that the SEC's Office of the Inspector General (" OIG" ) had initiated an investigation into his time and attendance habits. Compl. ¶ 28. Convinced that this investigation was undertaken in violation of federal employment discrimination laws, Mr. Koch contacted an Equal Employment Opportunity (" EEO" ) counselor. Counseling proved unfruitful, however, and on May 1, 2009, he filed a formal complaint with the SEC's EEO Office. See Admin. Compl.; Def.'s Stmt. Mat. Facts ¶ ¶ 5, 12-14; Pl.'s Stmt. Mat. Facts ¶ 5. On October 27, 2009, the SEC issued a final agency decision dismissing this complaint. Oct. 27, 2009 SEC Dismissal Letter; Def.'s Stmt. Mat. Facts ¶ 7.
On January 26, 2010, Mr. Koch filed this civil action, naming as the defendant the Chairman of the SEC in her official capacity. In this action, Mr. Koch asserts that
the OIG investigation was carried out " in retaliation for past and then-protected activity, namely, Plaintiff's equal employment opportunity complaints and litigation." Compl. ¶ 40; see also id. ¶ ¶ 7, 28, 35, 41-42. Mr. Koch further alleges that the OIG improperly reviewed his medical records, in violation of the confidentiality provisions of the Rehabilitation Act. Id. ¶ ¶ 38, 44-46.
The SEC has moved to dismiss Mr. Koch's claims pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment under Rule 56. Def.'s Mot. at 1. The SEC contends that Mr. Koch's allegations of retaliation under the Rehabilitation Act, Title VII, and the ADEA should be dismissed for failure to exhaust his administrative remedies, as Mr. Koch did not present any allegations of retaliation in his administrative complaint. See Def.'s Mot. at 2. The SEC also asserts that Mr. Koch's Title VII and ADEA claims independently are barred on the basis of failure to exhaust because his administrative complaint does not mention Title VII, the ADEA, any adverse actions connected to his sex, race, or age, or any protected activities related to his sex, race, or age. Id. Therefore, according to the SEC, even if the Court finds that Mr. Koch raised the issue of retaliation at the administrative level, it must find that he did so only in the context of the Rehabilitation Act. Id.
The SEC argues that Mr. Koch's claim of violations of the Rehabilitation Act's confidentiality provisions also should be dismissed. First, it asserts that the specific claims made by Mr. Koch were never raised in his administrative complaint and therefore must be dismissed for nonexhaustion. Def.'s Mot. at 3. According to the SEC, the claim accepted by the agency for investigation was whether the SEC violated the Rehabilitation Act when Mr. Koch's supervisor " improperly received and reviewed medical documentation submitted by Complainant in November 2008." See Def.'s Mot. at 2-3. That claim did not include the specific allegations presented here: that the OIG unlawfully obtained testimony relating to Mr. Koch's medical information from a disability coordinator supervisor, and that the OIG unlawfully reviewed emails containing Koch's medical information. See Def.'s Mot. at 2-3. Second, the SEC contends that because Mr. Koch alleges no injury-in-fact as a result of these alleged privacy violations, he has failed to state a claim under the Rehabilitation Act. Def.'s Mot. at 3.
While Mr. Koch is proceeding pro se in this case, the Court notes that he is a lawyer, see Pl.'s Opp. at 18, and is an active litigant who has considerable experience pursuing employment discrimination matters. Nevertheless, the Court reviews his filings under " less stringent standards than formal pleadings [or legal briefs] drafted by lawyers." Chandler v. W.E. Welch & Associates, Inc., 533 F.Supp.2d 94, 102 (D.D.C. 2008) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Federal employees must exhaust their administrative remedies before filing suit under Title VII, the Rehabilitation Act, or the ADEA. See 42 U.S.C. § 2000e-16(c) (requiring exhaustion under Title VII procedures); 29 U.S.C. § 794a(a)(1) (applying the remedies, procedures, and rights associated with Title VII claims to Rehabilitation Act claims); 29 U.S.C § 633a(b)-(d) (providing exhaustion requirements ...