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Dick v. Holder

United States District Court, D. Columbia.

February 19, 2015

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

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


Re Document No.: 21


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

RUDOLPH CONTRERAS, United States District Judge.


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.


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.


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 ...

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