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Dick v. Holder

United States District Court, D. Columbia.

February 19, 2015

MICHAEL G. DICK, Plaintiff,
v.
ERIC H. HOLDER, JR., et al., Defendants

For MICHAEL G. DICK, Plaintiff: Kevin E. Byrnes, GRAD, LOGAN, KLEWANS, BOWEN & BYRNES, Falls Church, VA.

For ERIC H. HOLDER, JR., ROBERT S. MUELLER, III, Defendants: Javier M. Guzman, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Re Document No.: 21

MEMORANDUM OPINION

Granting in Part and Denying in Part Defendants' Supplemental Motion to Dismiss or for Partial Summary Judgment

RUDOLPH CONTRERAS, United States District Judge.

I. INTRODUCTION

Plaintiff Michael G. Dick (" Agent Dick" ), a Special Agent with the Federal Bureau of Investigation (" FBI" ), brought this action against the United States Attorney General and FBI Director (collectively, " Defendants" ) in their official capacities. His first amended complaint alleges that he suffered discrete acts of discrimination and a hostile work environment because of his disability, in violation of the Rehabilitation Act, 29 U.S.C. § § 701 et seq., and because of his age, in violation of the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § § 621 et seq. Agent Dick also claims that he suffered retaliation for his opposition to this alleged discrimination, in violation of both statutes. Defendants have moved to dismiss or for summary judgment on most of Agent Dick's claims on the basis of failure to exhaust or failure to state a claim. See ECF No. 21. For the reasons given below, the Court grants their motion in part and denies it in part.

II. FACTUAL BACKGROUND

Agent Dick was a GS-1811 Series Special Agent with the FBI at all times relevant to this case. See First Am. Compl. ¶ 1, ECF No. 19. On May 7, 2013, he injured his right hand during his quarterly firearms qualification testing. See id. ¶ ¶ 91-93. After various administrative hurdles prevented him from obtaining prompt medical treatment, he called the FBI Health Services Unit and expressed frustration with an FBI human resources official. See id. ¶ 109. The following day, May 8, 2013, the FBI released a nationwide " Be on the Lookout" (" BOLO" ) alert containing allegedly false claims that Agent Dick was on " administrative leave during a pending investigation" and had " made threats to his chain of command." See id. ¶ 110; see also BOLO, Pl.'s Ex. 1, ECF No. 23-2.[1] The day after the BOLO's issuance, the FBI suspended Agent Dick's security clearance. See First Am. Compl. ¶ 115.

Agent Dick responded with complaints of disability discrimination. On May 23, 2013, his attorney Kevin E. Byrnes (" Byrnes" ) informed an FBI official by email that Agent Dick " is invoking all the protections of the . . . Rehabilitation Act" and " is asserting that you are perceiving him as disabled and have tried to revoke his clearance based on the perception that he is mentally unfit." Byrnes email of May 23, 2013, Compl. Ex., ECF No. 19. On June 7, 2013, Byrnes advanced similar claims in a letter to the FBI human resources official whom Agent Dick had criticized. See Byrnes letter of June 7, 2013, Pl.'s Ex. 1, ECF No. 23-2.

These complaints were followed by events that affected Agent Dick personally and professionally. At some point in June, Agent Dick learned that his wife had received from the FBI unfavorable information about him that she then sought to use in divorce proceedings. See First Am. Compl. ¶ 116. On June 18, 2013, Agent Dick received from the FBI Health Unit a notice requiring him to complete a fitness for duty examination. See id. ¶ ¶ 117, 122-24. On June 19, 2013, Agent Dick was allegedly suspended indefinitely without pay, pending the FBI's review of whether his conduct posed a security threat. See id. ¶ ¶ 215-16, 223. After Byrnes objected to the fitness for duty examination requirement, Agent Dick subsequently appeared for the examination but refused to sign an informed consent agreement and release. See id. ¶ ¶ 125-30. Ultimately, on December 5, 2013, he completed the examination. See id. ¶ 135. Agent Dick has neither received a copy of his examination results nor been reinstated. See id. ¶ 138.

On June 21, 2013, Agent Dick sent a letter to FBI Equal Employment Opportunity (" EEO" ) Counselor M. Drew Crislip (" Crislip" ) complaining of the FBI's medical inquiries. The letter bore the subject " Formal Equal Employment Opportunity (EEO) complaint by SSA Michael Gerald Dick," and asserted that because the FBI had ordered the fitness for duty examination on the basis of a perceived mental disability, the examination violated the Rehabilitation Act. See First Am. Compl. ¶ 140; Dick letter of June 21, 2013, Pl.'s Ex. 3, ECF No. 23-4. The letter requested that the examination be cancelled and that his records be kept in confidence, and also sought counseling from Crislip. See Dick letter of June 21, 2013, Pl.'s Ex. 3. On June 26, 2013, Crislip interviewed Agent Dick, who was accompanied by Byrnes. See Report of Counseling, Defs.' Ex. A, ECF No. 21-1. During their conversation, Agent Dick alleged that he had suffered discrimination on the basis of age and mental handicap, as well as retaliation on account of his " prior issues with management & successful Merit Systems Protection Board case against [the FBI]." Id.

On July 2, 2013, after informal efforts to resolve the dispute proved unfruitful, Crislip issued Agent Dick a notice of his right to file a formal complaint. See id. Accordingly, on July 8, 2013, Agent Dick filed a formal EEO charge of discrimination. See generally Complaint of Discrimination, Defs.' Ex. B, ECF No. 21-2. In indicating the bases for alleged discrimination, he checked the choices for " age" and " reprisal," but not " disability." Id. In the explanation fields, Agent Dick wrote that he " invoke[d] the anti-retaliation provision and substantive protections of Federal EEO law" and alleged that the FBI had committed " acts of retaliation and reprisal over the past several years" and was " trying to force [him] out because of [his] age." Id. He further challenged the FBI's issuance of the BOLO, the mandatory fitness for duty examination, a " 10 year internal affairs investigation," and the revocation of his security clearance. Id. In the package containing his formal EEO charge, Agent Dick enclosed a copy of his initial letter to Crislip. See Dick Aff. ¶ ¶ 2, 8, Pl.'s Ex. 2, ECF No. 23-3.

On October 23, 2013, FBI EEO Officer Kevin M. Walker (" Walker" ) sent Byrnes a letter advising him that the FBI had begun to process Agent Dick's EEO charge. See generally Walker letter of Oct. 23, 2013, Defs.' Ex. C, ECF No. 21-3. In his letter, Walker stated that the FBI had accepted for investigation four claims of age discrimination, based respectively on the discrete acts of (1) the FBI Health Services Unit's response to Agent Dick's May 2013 injury; (2) the BOLO; (3) the June 18, 2013, letter directing him to complete a fitness for duty examination; and (4) the June 19, 2013, letter suspending him from duty without pay. See id. at 2. Walker's letter made no mention of any claims of discrete-act or hostile work environment discrimination under the Rehabilitation Act, or hostile work environment discrimination under the ADEA. See generally id. Walker also explained that the FBI was dismissing the " reprisal" claim for failure to state a claim, on the grounds that Agent Dick had not " allege[d] that he previously engaged in . . . protected activity prior to the occurrence of" the alleged retaliation. Id. (citing 29 C.F.R. § 1614.107(a)(1) (mandating agency dismissal for failure to state a claim)). The letter directed Byrnes to respond within fifteen days of his receipt of the letter if Agent Dick " disagree[d] with [Walker's] decision not to accept the basis of reprisal" or " believe[d] that the basis or the allegations described in his EEO complaint has not been properly identified for investigation . . . ." Id. at 3.

Walker's letter further explained that the dismissal of Agent Dick's " reprisal" claim " may be appealed solely through the procedures described" in the letter. Id. The letter explained that if he did not receive the Report of Investigation within 180 days following the filing of his formal charge, Agent Dick could request a hearing before an administrative judge. See id. at 3-4.[2] If the administrative judge were to disagree with the " reasons for dismissal," " the entire EEO complaint--or all of the portions not meeting the standards for dismissal--w[ould] continue in the hearing process." See id. at 4.[3] The administrative judge's " decision on the dismissal" could be appealed " by either party after the final agency action is taken on the complaint." Id.[4] Walker's letter further explained that Agent Dick " also has the right to file a civil action . . . after 180 days from the date of filing the complaint if an appeal has not been filed and final action has not been taken[.]" Id.[5]

Walker never received a response from Byrnes or Dick concerning either the dismissed reprisal claim or the claims identified for investigation. See Trent Decl. ¶ ¶ 5, 6, ECF No. 21-4. January 5, 2014, marked the passage of 180 days after Agent Dick filed his charge, and the FBI had not taken final action. See First Am. Compl. ¶ ¶ 141, 146. Agent Dick neither requested a hearing nor amended his charge to elaborate on his reprisal claim.[6]

Instead, in February 2014, Agent Dick filed his first amended complaint, which asserts discrimination claims under the Rehabilitation Act and the ADEA based on discrete acts, a hostile work environment, and retaliation. See First Am. Compl. ¶ ¶ 176-251. The complaint further alleges that Agent Dick exhausted administrative remedies for all of these claims because the FBI had not taken final agency action within the 180-day investigation period. See id. ¶ ¶ 141, 146. After February 2014, FBI officials allegedly attempted to interfere with Agent Dick's right to counsel by making certain threats and intimidating his attorney, see id. ¶ ¶ 225-30, and the agency is now allegedly monitoring Agent Dick and his communications with counsel, see id. ¶ 237.

In their supplemental motion, Defendants move to dismiss or for partial summary judgment on most of the Rehabilitation Act and ADEA claims. See Mem. Supp. Defs.' Suppl. Mot. Dismiss 2, ECF No. 21. They do not, however, presently seek dismissal or summary judgment on Agent Dick's discrete-act age discrimination claims asserted in Count Ten. Id. at 2 n.3.

III. LEGAL STANDARDS

A. Rule 12(b)(1)

Federal courts are courts of limited jurisdiction, and the law presumes that " a cause lies outside this limited jurisdiction[.]" Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Thus, to survive a Rule 12(b)(1) motion to dismiss, a plaintiff bears the burden of establishing that a court has subject-matter jurisdiction over his claim. See Moms Against Mercury v. FDA, 483 F.3d 824, 828, 376 U.S.App.D.C. 18 (D.C. Cir. 2007). In determining whether jurisdiction exists, a court may " consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S.App.D.C. 72 (D.C. Cir. 2003) (citations omitted).

B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain sufficient factual allegations, accepted as true, to " state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court generally cannot consider matters beyond the pleadings at the motion-to-dismiss stage, it may consider " documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss[.]" Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal citations and quotation marks omitted).

C. Rule 56

A court may grant summary judgment when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A " material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

IV. ANALYSIS

In his first amended complaint, Agent Dick asserts several claims under the Rehabilitation Act and the ADEA, which prohibit discrimination based on disability and age, respectively.[7] The Rehabilitation Act " forbids federal agencies from engaging in any discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA)." Solomon v. Vilsack, 628 F.3d 555, 560, 393 U.S.App.D.C. 327 (D.C. Cir. 2010); see also 29 U.S.C. § 791(g). Discriminatory acts prohibited by the ADA include " denying employment opportunities to . . . [an] employee who is an otherwise qualified individual with a disability" and " using . . . employment tests . . . that screen out or tend to screen out an individual with a disability," unless the tests are " shown to be job-related for the position in question and . . . consistent with business necessity." 42 U.S.C. § 12112(b)(5)(B), (b)(6). The ADEA makes it unlawful for an employer to discriminate against an individual " because of such individual's age." 29 U.S.C. § 623(a)(1), (2). Such discrimination includes " limit[ing] . . . employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee . . . ." Id.

The Rehabilitation Act and ADEA also forbid retaliation against employees who complain of discrimination prohibited by those statutes. See 42 U.S.C. § 12203 (ADA anti-retaliation provision, applicable to Rehabilitation Act retaliation claims by virtue of 29 U.S.C. § 791(g)); 29 U.S.C. § 623(d) (ADEA anti-retaliation provision). To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in statutorily protected activity; (2) he suffered a materially adverse action by his employer; and (3) a causal link connects the two. See Solomon v. Vilsack, 763 F.3d 1, 14, 412 U.S.App.D.C. 127 (D.C. Cir. 2014) (Rehabilitation Act); Jones v. Bernanke, 557 F.3d 670, 677, 384 U.S.App.D.C. 443 (D.C. Cir. 2009) (ADEA).

A federal agency employee who asserts Rehabilitation Act and ADEA claims against his employer must " initiate his . . . complaint with the agency." Kizas v. Webster, 707 F.2d 524, 544, 227 U.S.App.D.C. 327 (D.C. Cir. 1983). Under Equal Employment Opportunity Commission (" EEOC" ) regulations, only after notifying the agency's EEO office, filing a formal charge with the agency, and allowing the agency time to resolve the charge, can the employee file a civil action in federal district court. See 29 C.F.R. § § 1614.105, 1614.106, 1614.108, 1614.407. This procedure " vest[s] in the federal agencies and officials engaged in hiring and promoting personnel 'primary responsibility' for maintaining nondiscrimination in employment." Kizas, 707 F.2d at 544 (citation omitted) (discussing same administrative procedures for federal employee complaints under Title VII).

" A failure to exhaust administrative remedies for Rehabilitation Act claims is a jurisdictional defect . . . ." Mahoney v. Donovan, 824 F.Supp.2d 49, 58 (D.D.C. 2011) (citing Spinelli v. Goss, 446 F.3d 159, 162, 371 U.S.App.D.C. 20 (D.C. Cir. 2006)).[8] Because exhaustion is a jurisdictional requirement, the plaintiff bears the burden to prove that he has exhausted his Rehabilitation Act claim. Id. By contrast, under the ADEA, failure to exhaust is an affirmative defense. See Koch v. Schapiro, 699 F.Supp.2d 3, 12 (D.D.C. 2010) (citing Rann v. Chao, 346 F.3d 192, 194-95, 358 U.S.App.D.C. 122 (D.C. Cir. 2003)). Accordingly, the defendant bears the burden to prove that the plaintiff has failed to exhaust his ADEA claim. See id.

For exhaustion purposes, the EEO charge encompasses claims that are " like or reasonably related to the allegations of the charge and growing out of such allegations." Park v. Howard Univ., 71 F.3d 904, 907, 315 U.S.App.D.C. 196 (D.C. Cir. 1995) (citation omitted) (discussing scope of Title VII administrative claim). To be sufficiently related in this manner, a claim " must arise from 'the administrative investigation that can reasonably be expected to follow the charge of discrimination.'" Id. (citation omitted). The " like or reasonably related" test balances two competing concerns. On the one hand, " [t]he purpose of the [exhaustion] doctrine is to afford the agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts." Wilson v. Pena, 79 F.3d 154, 165, 316 U.S.App.D.C. 352 (D.C. Cir. 1996); see also Brown v. Marsh, 777 F.2d 8, 15, 250 U.S.App.D.C. 8 (D.C. Cir. 1985) (describing " exhaustion doctrine's purpose" as " giving the agency notice of a claim and opportunity to handle it internally" ). On the other hand, because courts must ensure that remedies provided by federal employment discrimination law are " accessible to individuals untrained in negotiating procedural labyrinths . . .[,] the strictures of common law pleading have no place in a scheme largely dependent upon self-service in drawing up administrative charges." Brown, 777 F.2d at 14 (internal quotation marks and citations omitted) (discussion Title VII exhaustion); accord Lyles v. District of Columbia, 777 F.Supp.2d 128, 134 (D.D.C. 2011). Accordingly, the fact that a plaintiff presents a claim " with greater specificity" in court than he did before the agency cannot alone foreclose a finding of exhaustion. Lyles, 777 F.Supp.2d at 134 (citation omitted).

A. Exhaustion of Administrative Remedies

Defendants contend that Agent Dick has failed to exhaust his claims for discrete-act and hostile work environment discrimination under the Rehabilitation Act, his claim for hostile work environment under the ADEA, and his claims for retaliation under both statutes. For the reasons given below, the Court agrees with Defendants as to the Rehabilitation Act discrete-act and hostile work environment claims and the ADEA hostile work environment claim. The Court concludes, however, that Agent Dick properly exhausted his retaliation claims under the Rehabilitation Act and the ADEA.

1. Discrete Discriminatory Acts and Hostile Work Environment under the Rehabilitation Act (Counts Three, Four, Five, Six, Eight, and Ten)

The Court first considers whether Agent Dick has shown that he exhausted his claims for discrete-act discrimination and hostile work environment under the Rehabilitation Act. Agent Dick alleges several discrete discriminatory acts--the BOLO issuance (Count Five), the improper collection and disclosure of confidential information related to the fitness for duty examination (Count Four), the fitness for duty examination itself (Count Three), suspension without pay (Count Six), the failure to disclose to him the fitness for duty examination results (Count Eight), and interference with his right to counsel and ongoing monitoring of him and his communications with counsel (Counts Eight and Ten). See First Am. Compl. ¶ ¶ 176-219, 222-37. Count Ten further alleges that these acts cumulatively constituted a hostile work environment. See id. ¶ ¶ 233-37; see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (distinguishing hostile work environment claims from those based on discrete acts).[9]

The Court concludes that Agent Dick has not exhausted administrative remedies as to his Rehabilitation Act discrete-act and hostile work environment discrimination claims because he failed to challenge the FBI's reasonable omission of these claims from the scope of the EEO investigation. As a preliminary matter, Agent Dick does not dispute that his formal EEO charge made no mention of any disability discrimination claims based either on discrete acts or a hostile work environment. In the formal charge, he asserted claims of discrimination based only on " age" and " reprisal" ; he did not check " disability." See Complaint of Discrimination, Defs.' Ex. B. Nor do his explanations in the charge allege that any specific discriminatory act or hostile work environment was premised on his actual or perceived disability. See id. Lastly, the age discrimination and retaliation claims in Agent Dick's EEO charge cannot serve to exhaust his disability-related claims because the theories alleged are entirely distinct. Cf. Bowe-Connor v. Shinseki, 923 F.Supp.2d 1, 7 (D.D.C. 2013) (dismissing claim of national origin discrimination for failure to exhaust where EEO charge alleged only age and gender discrimination); Nyunt v. Tomlinson, 543 F.Supp.2d 25, 35 (D.D.C. 2008) (dismissing race discrimination claim for failure to exhaust where EEO charge alleged only national origin discrimination).

Nor can Agent Dick rely on the fact that he informally raised a Rehabilitation Act claim before filing his formal EEO charge when he initially sought counseling from Crislip. To be sure, Agent Dick's initial letter to Crislip, styled as a " Formal Equal Employment Opportunity (EEO) complaint," expressly challenged the fitness for duty examination requirement as a violation of the Rehabilitation Act, on the grounds that Agent Dick was treated adversely for his perceived mental disability. See Dick letter of June 21, 2013, Pl.'s Ex. 3. But this informal communication, standing alone, is insufficient. See Hamilton v. Geithner, 666 F.3d 1344, 1350, 399 U.S.App.D.C. 77 (D.C. Cir. 2012) (" Filing a formal complaint is a prerequisite to exhaustion . . ., so [plaintiff] cannot rely on the EEO counseling report to establish exhaustion of a claim that he failed to include in his formal complaint." (internal citation omitted)).

The Court's inquiry, however, does not end here. In his opposition and supporting affidavit, Agent Dick contends for the first time that in the package containing his formal EEO charge, he enclosed a copy of his initial letter to Crislip. See Pl.'s Mem. Opp'n 4 (¶ 18 of factual statement); id. at 10-11; Dick Aff. ¶ ¶ 2, 8, Pl.'s Ex. 2. Explaining his reasons for enclosing the letter rather than raising the disability discrimination claims in his formal charge, Agent Dick avers that Crislip told him that he " did not need to allege the Rehabilitation Act [claim] on the Form 201A [of the formal charge] as [he] had already done so." Dick Aff. ¶ 8, Pl.'s Ex. 2. In essence, Agent Dick claims that his formal EEO charge incorporated the Rehabilitation Act claims asserted in his initial letter to Crislip.

The Court is wary of Agent Dick's attempt to advance a jurisdictional allegation wholly absent from his complaint. See District of Columbia v. Barrie, 741 F.Supp.2d 250, 263 (D.D.C. 2010) (" [A] party may not amend its complaint or broaden its claims through summary judgment briefing." ); Mahoney, 824 F.Supp.2d at 58 (establishing Rehabilitation Act plaintiff's burden to meet jurisdictional exhaustion requirement); see also First Am. Compl. ¶ ¶ 139-43 (failing to allege enclosure of letter to Crislip). Nonetheless, because Agent Dick has proffered an affidavit supporting his allegation, and in the interests of judicial efficiency, the Court will assume the truth of Agent Dick's factual assertion that he enclosed his letter to Crislip with his EEO charge. Anderson, 477 U.S. at 255 (" The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." ).[10]

Even assuming this fact, the Court concludes that Agent Dick has not carried his burden of demonstrating that he exhausted administrative remedies as to his Rehabilitation Act discrete-act and hostile work environment claims. First, because Agent Dick failed to contest the absence of those claims from Walker's letter identifying claims for investigation, the claims could no longer " arise from 'the administrative investigation that can reasonably be expected to follow the charge of discrimination.'" Park, 71 F.3d at 907 (citation omitted) (emphasis added). Agent Dick does not dispute that his Rehabilitation Act claims were not among those claims identified for investigation by Walker's letter. See generally Walker letter of Oct. 23, 2013, Defs.' Ex. C. Nor does he genuinely dispute that Byrnes received Walker's letter and that Byrnes failed to contest the scope of the FBI's proposed investigation within the allotted fifteen days.[11] Agent Dick's inaction thus precludes a finding that his EEO charge " could reasonably be expected upon investigation to lead to" his Rehabilitation Act discrete-act and hostile work environment claims. Park, 71 F.3d at 909.

Second, Agent Dick fails to offer any evidence supporting his allegation that the FBI manipulated the system to create an exhaustion issue by " suppress[ing]" and intentionally " ignor[ing]" his letter to Crislip containing the Rehabilitation Act claims. Pl.'s Mem. Opp'n 11. An agency may not unreasonably omit claims from investigations, in hopes that a complainant's tardy realization of the omission will constitute a failure to exhaust. Cf. Cheatham v. Holder, 935 F.Supp.2d 225, 236 (D.D.C. 2013) (explaining that because " the investigation naturally and necessarily was limited to those issues raised before the EEO Counselor," the agency's decision not to identify and investigate other claims asserted in the formal charge, without any objection, resulted in a failure to exhaust). But here, even if Agent Dick had enclosed his letter to Crislip, the formal EEO charge neither explicitly incorporated the letter nor, as Agent Dick effectively concedes, made any mention of discrete-act or hostile work environment Rehabilitation Act claims. Thus, Agent Dick proffers no evidence that Walker's omission of the Rehabilitation Act claims was unreasonable.[12]

The Court thus holds that where an agency reasonably fails to identify for investigation a claim indirectly asserted in a plaintiff's administrative charge, and where the plaintiff does not timely object to this omission before the agency, the plaintiff cannot show that he has exhausted administrative remedies as to this claim. See Park, 71 F.3d at 907.[13] Accordingly, the Court dismisses for lack of jurisdiction Counts Three, Four, Five, Six, Eight, and Ten insofar as they allege that Agent Dick suffered discrete acts of discrimination and a hostile work environment because of his disability, in violation of the Rehabilitation Act. See Mahoney, 824 F.Supp.2d at 58.

2. Hostile Work Environment under the ADEA (Counts Ten and Eleven)

Incorporating the discrete-act discrimination allegations under the Rehabilitation Act, Counts Ten and Eleven allege that Agent Dick also suffered a hostile work environment because of his age, in violation of the ADEA. See First Am. Compl. ¶ ¶ 235, 238-51. As an affirmative defense, Defendants argue that Agent Dick's ADEA hostile work environment claim--like his Rehabilitation Act hostile work environment claim--was not exhausted because Walker's letter did not identify the claim for investigation, and Agent Dick never responded to the letter. See Mem. Supp. Defs.' Suppl. Mot. Dismiss 13-14.

The Court agrees that Agent Dick has failed to exhaust his ADEA hostile work environment claim. The EEO charge alleged discrete discriminatory acts--that the FBI issued the BOLO, required a fitness for duty examination, pursued a " 10 year internal affairs investigation," and revoked his security clearance--and stated an overarching claim that Agent Dick was being " force[d] . . . out" on account of his age. Complaint of Discrimination, Defs.' Ex. B. Although the allegations in Agent Dick's EEO charge, taken together, could plausibly have led to an investigation of an ADEA hostile work environment claim, see Park, 71 F.3d at 909; see also Whorton v. Wash. Metro. Area Transit Auth., 924 F.Supp.2d 334, 348 (D.D.C. 2013) (" [A] plaintiff need not use any magic words in a charge much less use the specific term 'hostile work environment' in order to properly exhaust such a claim." ), those allegations are not sufficiently clear to lead necessarily to that conclusion.

Crucially, in any event, Walker's letter of October 23, 2013, changes the analysis: The letter explained that the FBI had accepted for investigation only discrete-act age discrimination claims, with no mention of an ADEA hostile work environment claim. See Park, 71 F.3d at 909; Mem. Supp. Suppl. Mot. Dismiss 13. At this point, it was incumbent upon Agent Dick to clarify his imprecise allegations if he believed that the FBI had misinterpreted them. But like Agent Dick's Rehabilitation Act discrete-act and hostile work environment claims, his ADEA hostile work environment claim was not identified by the FBI for investigation, and he did not object to this omission. See supra Part IV.A.1. Moreover, Defendants have demonstrated that the omission was reasonable, given the EEO charge's lack of a clearer reference to a hostile work environment claim. Because the ADEA hostile work environment claim cannot " arise from 'the administrative investigation that can reasonably be expected to follow the charge of discrimination,'" the Court concludes that Agent Dick failed to exhaust administrative remedies as to this claim. Park, 71 F.3d at 907 (citation omitted) (emphasis added).

The Court accordingly grants Defendants' motion to dismiss Agent Dick's claim in Count Ten, reasserted in Count Eleven, that he suffered a hostile work environment because of his age, in violation of the ADEA.

3. Retaliation under the Rehabilitation Act and the ADEA (Counts Three, Seven, Eight, and Ten)

The Court now considers whether Agent Dick exhausted his retaliation claims under the Rehabilitation Act and the ADEA. Agent Dick alleges that all discrete acts alleged to be discriminatory under the Rehabilitation Act also constituted retaliation in violation of the Rehabilitation Act and the ADEA--the BOLO issuance (Count Seven, First Am. Compl. ¶ 221)[14] the improper collection and disclosure of confidential information related to the fitness for duty examination (Count Ten, id. ¶ 234, incorporating Count Four), the fitness for duty examination itself (Counts Three, id. ¶ 186, and Seven, id. ¶ 221), suspension without pay (Count Ten, id. ¶ 234, incorporating Count Six), the failure to disclose to him the fitness for duty examination results (Count Eight, id. ¶ ¶ 230-31), and interference with his right to counsel and ongoing monitoring of him and his communications with counsel (Counts Eight, id., and Ten, id. ¶ 237). See generally id. ¶ ¶ 233-37 (Count Ten alleging that all alleged discrimination constitutes retaliation under both statutes).

In contending that Agent Dick failed to exhaust his retaliation claims, Defendants again argue that Agent Dick did not respond to Walker's October 23, 2013, letter. Mem. Supp. Defs.' Suppl. Mot. Dismiss 15 (" [T]he EEO Office instructed Plaintiff's counsel to advise in writing if he disagreed with the FBI's decision not to accept the reprisal claim, but Plaintiff did not submit any response." ). But Defendants overlook an important distinction: The FBI did not omit the " reprisal" claim from the investigation, but rather dismissed it for failure to state a claim. See Walker letter of Oct. 23, 2013, Defs.' Ex. C. For the reasons that follow, the Court concludes that Agent Dick exhausted his Rehabilitation Act and ADEA retaliation claims.[15]

Under the EEOC regulations, prior to a complainant's request for a hearing, a federal agency " shall dismiss" all or part of a discrimination charge on any number of several enumerated grounds, including failure to state a claim. 29 C.F.R. § 1614.107(a)(1). A partial dismissal of an employee's discrimination charge--the dismissal of " some but not all" of the claims in a charge--triggers a specific appeals procedure. Id. § 1614.107(b). If the agency fails to complete its investigation within 180 days following the filing of the formal charge, the complainant may request a hearing before an EEOC administrative judge, at which hearing the partial dismissal is " reviewable." Id. § 1614.107(b); see also id. § 1614.108(f), (h). This right to review does not depend on whether a complainant " preserves" the issue by responding to an initial partial dismissal. Once the agency takes final action either adopting or overruling the initial partial dismissal, either party may file an administrative appeal to the EEOC. See id. § § 1614.107(b), 1614.110(a), 1614.401. Lastly, and crucially for this case, after 180 days following the filing of an administrative charge, if the agency has not taken final action and no appeal has been filed, the complainant can forgo a hearing and " is authorized under . . . the ADEA and the Rehabilitation Act to file a civil action in an appropriate United States District Court[.]" Id. § 1614.407(b).[16] Thus, when the 180-day investigation period lapses, the plaintiff still has a right to have the partial dismissal reviewed. At this point, his choice to seek review in this Court as permitted by the regulations, rather than with an administrative judge, does not extinguish the dismissed claim.

Further guidance comes from Franklin v. Potter, in which this Court concluded that once an agency issues a final decision incorporating an earlier partial dismissal, the complainant has exhausted administrative remedies as to the dismissed claim, notwithstanding a failure to oppose the dismissal before the agency. 600 F.Supp.2d 38, 61-62 (D.D.C. 2009). Franklin, a U.S. Postal Service employee, filed a formal EEO charge alleging gender-and disability-based discrimination, including a claim for " hostile work environment harassment." Id. at 56. The Postal Service dismissed the harassment claim " because the facts alleged did not constitute a hostile work environment." Id. The agency's final decision expressly " endorsed and incorporated by reference" its earlier dismissal. Id. at 61. Subsequently in this Court, Franklin asserted his hostile work environment claim. Concluding that Franklin exhausted this claim, the Court first rejected the defendant's argument that Franklin's failure to " oppose the [a]gency's dismissal" of the claim constituted a failure to exhaust. Id. (citation omitted). The Court reasoned that Franklin " could not have asked the EEOC or this Court to review a partial dismissal of his complaint until the agency issued its final decision on the rest of the complaint." Id. Next, the Court concluded that after the final agency decision expressly endorsed the earlier dismissal, Franklin " had fully exhausted his claims and had no obligation to pursue an administrative appeal, because the regulations permitted him to file a civil action . . . ." Id. (citing 29 C.F.R. § 1614.407(a)).

To be sure, a claim cannot be exhausted by any partial dismissal: An implied premise of Franklin is that the dismissed claim was " like or reasonably related" to the claim asserted in court. Park, 71 F.3d at 907 (citation omitted). Park's " like or reasonably related" requirement ensures that the agency has both notice of and an opportunity to investigate claims, see Wilson, 79 F.3d at 165; Brown, 777 F.2d at 15, protecting against the risk that a plaintiff circumvents the exhaustion doctrine by asserting in court a claim wholly unrelated to the dismissed claim.[17]

Reading the EEOC regulations, Franklin , and Park together, this Court concludes that where an agency dismisses some but not all claims in an administrative charge and does not take final action within the 180-day investigation period, the complainant exhausts administrative remedies as to the dismissed claims, so long as they are " like and reasonably related" to the claims asserted in court, notwithstanding his failure to oppose the dismissal before the agency. 29 C.F.R. § § 1614.107(b), 1614.407(b); Park, 71 F.3d at 907; Franklin, 600 F.Supp.2d at 61.

Applying this test to the instant facts, the Court holds that Agent Dick exhausted administrative remedies as to his Rehabilitation Act and ADEA retaliation claims. Under the EEOC regulations, Agent Dick had the right to bring his retaliation claims to court: He alleges, without response from Defendants, that following the initial partial dismissal of his " reprisal" claim, the FBI failed to take final agency action within the 180-day investigation period. See First Am. Compl. ¶ ¶ 141, 146. Moreover, the " reprisal" claim in Agent Dick's EEO charge was " like or reasonably related" to the Rehabilitation Act and ADEA retaliation claims asserted in this Court. Park, 71 F.3d at 907. The " reprisal" claim was buttressed by factual allegations in Agent Dick's letter to Crislip that the fitness for duty examination was ordered as a result of his " protestations of harassment and abuse generally" and his " recent response to the failure of the FBI to treat [him] for a work related injury." Dick letter of June 21, 2013, Pl.'s Ex. 3. In an exhaustion analysis, " the strictures of common law pleading have no place in a scheme largely dependent upon self-service in drawing up administrative charges." Brown, 777 F.2d at 14 (internal quotation marks and citations omitted). For the same reason, the fact that Agent Dick presented his retaliation claims " with greater specificity" in this Court than he did in proceedings before the FBI does not foreclose a finding of exhaustion. Lyles, 777 F.Supp.2d at 134 (citation omitted).[18]

Like Franklin's failure to " oppose the . . . dismissal," Agent Dick's failure to respond to the FBI's partial dismissal of his " reprisal" claim did not nullify his right under the regulations to file a civil action. Franklin, 600 F.Supp.2d at 61. Although Agent Dick could have taken certain actions in administrative proceedings to preserve more clearly his dismissed claim,[19] nowhere do the regulations require Agent Dick to do so in order to exhaust the claim. To the contrary, he was entitled to wait 180 days and, in the absence of final agency action, to bring his claims to this Court, as he ultimately did. See 29 C.F.R. § 1614.407(b).[20] Nor can Agent Dick's failure to challenge the dismissal be equated with a failure to " cooperat[e]" with the FBI's EEO investigation. Wilson, 79 F.3d at 166 (" Once a complainant files a complaint . . . and cooperates with the agency . . . for 180 days, he is not required to take any further action to exhaust his administrative remedies." (emphasis added)). Here, the FBI never requested any information from Agent Dick that it considered necessary to its investigation of the " reprisal" claim. Cf. 29 C.F.R. § 1614.107(a)(7); see Wilson, 79 F.3d at 166 (explaining that plaintiff exhausted administrative appeal where EEOC " did not request any information from him" during its investigation). In sum, in accordance with the EEOC regulations, Walker's letter provided Agent Dick with various options for challenging the dismissal, see Walker letter of Oct. 23, 2013 at 4, Defs.' Ex. C, and he simply opted for one of them--filing a civil action in court.

Agencies should not misconstrue this opinion to mean that dismissal of a claim forecloses a failure-to-exhaust defense, while wholly ignoring a claim without objection from the complainant preserves such a defense. First, as explained above, the Court holds only that the FBI's reasonable omission from its investigation of indirectly stated or imprecisely defined claims, without objection from Agent Dick, resulted in a failure to exhaust. See supra Part IV.A.1. Second, a dismissal forecloses a failure-to-exhaust defense only insofar as the dismissed claim is " like or reasonably related" to the claim asserted in court. Park, 71 F.3d at 907.

Notwithstanding the narrowness of today's holding, the Court emphasizes the fundamental distinction between a dismissal and a reasonable omission of a claim without objection, viewed through the policies animating the exhaustion doctrine. The unchallenged omission is an indication that the agency neither has considered nor will consider the omitted claim; courts thus presume that the agency has not received " notice of a claim and [an] opportunity to handle it internally." Brown, 777 F.2d at 15. By contrast, a dismissal demonstrates that the agency has in fact had " an opportunity to resolve the matter internally . . . ." Wilson, 79 F.3d at 165. Before deciding to dismiss a claim, the agency must identify it in the charge, consider the elements of the claim, and determine whether the charge has alleged each of the elements. See 29 C.F.R. § 1614.107(a)(1) (mandating pre-hearing dismissal for failure to state a claim). While this work might not be fact-intensive, a dismissal marks the culmination of the agency's initial consideration of the claim, not a lack of consideration altogether.

One final issue bears on the exhaustion of Agent Dick's retaliation claims: Here, because certain acts of alleged retaliation occurred after Agent Dick's EEO charge--the fitness for duty examination, the failure to disclose the examination results to him, the interference with his right to counsel, and the ongoing monitoring of him and his communications with counsel--this case potentially presents the question of whether Agent Dick had to separately exhaust administrative remedies as to these post-charge events. As understood by Defendants, Agent Dick's opposition asserts that he did not need to exhaust any retaliation claims based on post-charge events " reasonably related" to properly asserted claims in the charge. See Pl.'s Mem. Opp'n 11; Defs.' Reply Supp. Defs.' Suppl. Mot. Dismiss 9; see also Wedow v. City of Kansas City, Mo., 442 F.3d 661, 674 (8th Cir. 2006) (holding that where an EEO charge had alleged " ongoing and continuing" retaliation for sex discrimination complaints, the plaintiff did not need to separately exhaust claims alleging post-charge retaliation of " identical character," because such claims could be reasonably expected to grow out of the agency's investigation of the charge); accord Jones v. Bernanke, 685 F.Supp.2d 31, 37 (D.D.C. 2010).[21] But Defendants expressly decline to address this issue because they claim (incorrectly) that all alleged retaliation occurred before Agent Dick initiated EEO counseling. See Defs.' Reply Supp. Defs.' Suppl. Mot. Dismiss 9. Accordingly, in the absence of any briefing, the Court does not dismiss Agent Dick's claims alleging post-charge retaliation for failure to exhaust.

Because Agent Dick has demonstrated that he exhausted administrative remedies as to his retaliation claims under both the Rehabilitation Act and the ADEA, respectively, the Court has subject-matter jurisdiction over the former claims, and Defendants cannot establish their affirmative failure-to-exhaust defense as to the latter. Accordingly, the Court will not dismiss the retaliation claims asserted in Counts Three, Seven, Eight, and Ten, for failure to exhaust administrative remedies.

B. Failure to State Retaliation Claims under the Rehabilitation Act and the ADEA (Counts Three, Seven, and Ten)

In the alternative, Defendants move to dismiss all retaliation claims for failure to state a claim, on the basis that Agent Dick does not allege any " statutorily protected activity" preceding the alleged retaliation. See Solomon, 763 F.3d at 14 (Rehabilitation Act); Jones, 557 F.3d at 677 (ADEA); Mem. Supp. Defs.' Suppl. Mot. Dismiss 14-15.

As to the Rehabilitation Act retaliation claim, the Court grants in part Defendants' motion to dismiss. The Court agrees that Agent Dick has not stated a claim that the May 8, 2013, BOLO was retaliatory, given that he does not allege any pre-BOLO activity protected by the Rehabilitation Act. See Solomon, 763 F.3d at 14.[22] But the Court denies the motion as to other instances of retaliation. The Rehabilitation Act prohibits retaliation for any " oppos[ition]" to alleged disability discrimination; such opposition need not be the filing of a formal EEO charge. 42 U.S.C. § 12203.[23] The exhibits to the first amended complaint show that as early as late May 2013, Agent Dick, through Byrnes, alleged disability-based discrimination in communications with FBI personnel--even expressly invoking the Rehabilitation Act.[24] On May 23, 2013, Byrnes informed an FBI official by email that Agent Dick " is invoking all the protections of the . . . Rehabilitation Act" and " is asserting that you are perceiving him as disabled and have tried to revoke his clearance based on the perception that he is mentally unfit." Byrnes email of May 23, 2013, Compl. Ex. On June 7, 2013, Byrnes advanced similar claims in a letter to the FBI human resources official whom Agent Dick had criticized. See Byrnes letter of June 7, 2013, Pl.'s Ex. 1. Defendants claim that these communications were not protected because they were " not made to anyone involved in the EEO process" and " did not raise any concern of discrimination," but these assertions are legally and factually incorrect, respectively. Defs.' Reply Supp. Defs.' Suppl. Mot. Dismiss 8 (discussing Byrnes letter of June 7, 2013, Pl.'s Ex. 1).[25] Because Defendants do not assert any other basis for dismissal of Agent Dick's Rehabilitation Act retaliation claim ( e.g., lack of causation, lack of materially adverse retaliation) the court denies the motion to dismiss as to all alleged retaliation that followed Byrnes's communications--the improper collection and disclosure of confidential information (June 2013),[26] the directive to complete the fitness for duty examination (June 18, 2013), the suspension without pay (June 19, 2013), the failure to disclose to Agent Dick the examination results (after December 2013), the interference with his right to counsel (after February 2014), and the ongoing monitoring of him and his communications with counsel.

Similarly, the Court dismisses the ADEA retaliation claim as to certain alleged instances of retaliation, but not as to others. The first amended complaint fails to allege plausibly that Agent Dick engaged in any " statutorily protected activity" under the ADEA before either the BOLO issuance (May 8, 2013), his receipt of the notice requiring the fitness for duty examination (June 18, 2013), or his suspension without pay (June 19, 2013). But Defendants do not dispute that Agent Dick asserted age discrimination claims on June 26, 2013, during his counseling session with Crislip. See Report of Counseling, Defs.' Ex. A.[27] Nor do they contend that these statements were not protected by the ADEA. Assuming the truth of the allegations in the complaint, the Court concludes that other retaliatory acts occurred after the counseling session--the improper collection and disclosure of confidential information (June 2013), the fitness for duty examination (December 2013),[28] the FBI's failure to disclose its results (after December 2013), the interference with Agent Dick's right to counsel (after February 2014), and the ongoing monitoring of him and his communications with his attorney. Because Defendants fail to address these alleged instances of retaliation, the Court will deny their motion to dismiss as to these allegations.

Accordingly, the Court grants Defendants' motion to dismiss Counts Three, Seven, and Ten as to Agent Dick's claims that Defendants retaliated against him by issuing the BOLO, in violation of the Rehabilitation Act and the ADEA, and by initially ordering the fitness for duty examination and suspending him without pay, in violation of the ADEA. The Court, however, denies the motion as to the other alleged instances of retaliation.[29]

V. CONCLUSION

For the foregoing reasons, Defendants' supplemental motion to dismiss or for partial summary judgment (ECF No. 21) is GRANTED IN PART and DENIED IN PART. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

ORDER

Granting in Part and Denying in Part Defendants' Supplemental Motion to Dismiss or for Partial Summary Judgment

For the reasons stated in the Court's Memorandum Opinion issued contemporaneously, Defendants' supplemental motion to dismiss or for partial summary judgment (ECF No. 21) is GRANTED IN PART and DENIED IN PART. It is hereby ORDERED that:

1. Counts One and Two of the First Amended Complaint are DISMISSED; and that
2. Counts Three, Four, Five, Six, Eight, and Ten of the First Amended Complaint, insofar as they allege that Agent Dick suffered discrete acts of discrimination and a hostile work environment because of his disability, in violation of the Rehabilitation Act, are DISMISSED for lack of subject-matter jurisdiction on account of failure to exhaust administrative remedies; and that
3. Counts Ten and Eleven of the First Amended Complaint, insofar as they allege that Agent Dick suffered a hostile work environment because of his age, in violation of the ADEA, are DISMISSED for failure to exhaust administrative remedies; and that
4. Counts Three, Seven, and Ten of the First Amended Complaint, insofar as they allege that Defendants retaliated against Agent Dick by issuing the BOLO on May 8, 2013, in violation of both the Rehabilitation Act and the ADEA, and by initially ordering the fitness for duty examination on June 18, 2013, and suspending him without pay on June 19, 2013, in violation of the ADEA, are DISMISSED for failure to state a claim.

SO ORDERED.


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