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Koch v. White

United States District Court, District Circuit

September 10, 2013

RANDOLPH S. KOCH, Plaintiff,
MARY JO WHITE, Chairman, Securities and Exchange Commission, et al. Defendants.[1]


PAUL L. FRIEDMAN United States District Court

This employment discrimination case is before the Court on defendants’ motion to dismiss the action or, in the alternative, for summary judgment. Defendants Mary Jo White, Chairman of the United States Securities and Exchange Commission (“SEC”), and Susan R. Larson, an SEC employee, filed their motion on October 12, 2012, approximately eleven months ago. Pro se plaintiff, Randolph S. Koch, did not file an opposition. On February 15, 2013, the Court issued an Order pursuant to Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), and Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992), directing Mr. Koch to respond to defendants’ dispositive motion by February 28, 2013, and informing him of the risks of failing to respond. See Fox/Neal Order (Feb. 15, 2013). Although Mr. Koch is trained as an attorney and has submitted briefs in opposition to dispositive motions in numerous other related cases, he has not responded to the motion in this action.[2] Nor has he made any request for an extension of time in this case since the Court’s February 15, 2013 Order.

In these circumstances, the Court may treat the defendants’ motion as conceded. D.D.C. Loc. Civ. R. 7(b); see also Fox v. American Airlines, Inc., 389 F.3d 1291, 1294-95 (D.C. Cir. 2004) (finding that district court did not abuse its discretion in granting dispositive motion on the basis that plaintiffs’ failure to timely respond was a concession of the motion’s validity under Local Civil Rule 7(b)); Cromartie v. Dist. of Columbia, 806 F.Supp.2d 222, 226 (D.D.C. 2011) (declining to reconsider treatment of defendants’ motion for summary judgment as conceded, where plaintiff had failed to file timely opposition), aff’d, No. 11-7099, 479 Fed. App’x 355 (D.C. Cir. May 2, 2012). The Court also has considered the substance of the defendants’ motion. After careful consideration of the motion, the Equal Employment Opportunity Commission (“EEOC”) decision denying Mr. Koch’s administrative appeal, and the relevant legal authorities, the Court has concluded that the motion should be granted on its merits and therefore will dismiss the case.[3]


Randolph Koch is a former employee of the Securities and Exchange Commission (“SEC”). Compl. ¶ 1. Mr. Koch alleges that he “suffers from numerous, serious medical conditions which substantially limit him in major life activities.” Id. ¶ 3. Although the complaint contains no allegations of his other protected statuses, the Court takes judicial notice of the fact that Mr. Koch, in related lawsuits, has described himself as over forty years old, white, and Jewish. Koch v. Schapiro, 777 F.Supp.2d 86, 87 (D.D.C. 2011); Koch v. Schapiro, 697 F.Supp.2d 65, 67 (D.D.C. 2010). Mr. Koch brings this suit against Chairman White in her official capacity as chairman of the SEC and against Ms. Larson in her individual capacity.

Mr. Koch initiated this civil action on February 23, 2012, when he filed a complaint in this Court. Most of Mr. Koch’s complaint is devoted to describing the SEC’s alleged failure to provide him promptly with certain benefits after his separation from the agency and Ms. Larson’s alleged misstatements to him about the relevant application process for such benefits. These allegations, accepted as true for the purposes of this motion, are summarized as follows.

Randolph Koch was separated from the SEC on October 13, 2009, for misconduct. Compl. ¶ 10. Following his separation, Mr. Koch sent e-mails and a letter to the SEC’s Office of Human Resources requesting that he be placed in retirement. Id. ¶ 11. Soon after, in December 2009, Mr. Koch called Ms. Larson, a benefits officer at the SEC, who informed him that she would begin to process his application for retirement benefits. Id. ¶¶ 12-13. Ms. Larson also led Mr. Koch to believe that she would arrange for the temporary continuation of his health insurance coverage and the provision of a subsidy to help him pay his health insurance premium. Id. ¶¶ 13, 17.[4] Mr. Koch does not allege that he had any contact with Ms. Larson before or after this conversation.

Mr. Koch, who has long suffered from a variety of physical ailments, fell ill once again in early 2010. Compl. ¶¶ 3-4, 18. From February 2010 through June 2010, he received medical treatment for a kidney stone, vertigo and related problems, and edema. Id. ¶¶ 18-21. Although he continued to receive health coverage during this period, he never received the health insurance premium subsidy, and instead paid the full premium himself. Id. ¶ 14. Nor did he receive retirement benefits. Id. ¶¶ 22-23.

In late 2010, not yet having received information regarding his retirement application or subsidy, Mr. Koch contacted the United States Office of Personnel Management (“OPM”). Compl. ¶ 23. Shortly thereafter, the OPM began to process his application, and Mr. Koch received his full accrued retirement benefit in August 2011. Id. ¶¶ 27-28. He has not been paid the value of the health insurance premium subsidy, to which he maintains he is entitled. Id. ¶ 28.

In addition to the alleged facts summarized above, Mr. Koch’s complaint also contains allegations relating to an entirely separate exchange with a different SEC employee. In early 2009, previous to the events described above and while he still was employed at the SEC, Mr. Koch initiated informal counseling through the SEC’s Equal Employment Opportunity (“EEO”) office. Compl. ¶ 29. This counseling was undertaken in connection with EEO Complaint No. 05-09-09, in which Mr. Koch asserted retaliatory conduct by the SEC Office of the Inspector General. See id. ¶ 29 and preceding heading; id. ¶ 42. Mr. Koch alleges that counselor Terri Booker was “disputatious, ” id. ¶ 30, and that she failed to conduct a final counseling interview. Id. ¶ 31.

Mr. Koch asserts four causes of action arising from these events. In the first count of the complaint, Mr. Koch asserts that the SEC, through Ms. Larson, engaged in discriminatory and retaliatory conduct in violation of the Rehabilitation Act, the Age Discrimination in Employment Act (“ADEA”), and Title VII of the Civil Rights Act of 1964 “by failing to process Koch’s retirement request, and/or by deceiving Koch into believing it would, without informing him that he should make his request to the Office of Personnel Management.” Compl. ¶¶ 33, 34. In the second count, he asserts that the SEC, through Ms. Larson, engaged in discriminatory and retaliatory conduct in violation of the aforementioned statutes “by failing to pay the [Federal Employees Health Benefits] premium subsidy required under the American Recovery and Reinvestment Act of 2009.” Id. ¶¶ 36, 37. The third count is a constitutional due process claim alleging that Mr. Koch was deprived of his retirement benefits and premium subsidy without due process. Id. ¶¶ 38-40. And finally, in the fourth count of the complaint, Mr. Koch asserts that the SEC failed to provide EEO counseling; Mr. Koch does not specify the specific cause of action that stems from this alleged failure. Id. ¶¶ 41-43.


While Mr. Koch is proceeding pro se in this case, the Court notes that he is a lawyer and an active litigant who has considerable experience pursuing employment discrimination matters. Koch v. Walter, --- F.Supp.2d ----, 2013 WL 1291097, at *2 (D.D.C. 2013). Nevertheless, the Court reviews his complaint 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 (1972)).

As the Court relies only on the pleadings and the administrative decision issued by the EEOC, of which it may take judicial notice, it analyzes defendants’ motion under Rule 12(b)(6), not as a motion for summary judgment under Rule 56. See Fed.R.Civ.P. 12(d); Laughlin v. Holder, 923 F.Supp.2d 204, 209 (D.D.C. 2013) (noting that a ...

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