United States District Court, D. Columbia
[Copyrighted Material Omitted]
SAKEITHEA RODGERS, Plaintiff: David H. Shapiro, SWICK &
SHAPIRO, P.C., Washington, DC.
THOMAS E. PEREZ, Secretary of Labor, Defendant: Marina Utgoff
Braswell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil
Division, Washington, DC.
G. Sullivan, United States District Judge
Sakeithea Rodgers (" Ms. Rodgers" ) brings this
action against the United States Department of Labor ("
DOL" ) alleging discrimination on the basis of sex and
retaliation for prior protected civil rights activity in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. and 42 U.S.C. §
1981a. The DOL moves to dismiss Ms. Rodgers's complaint
for failure to exhaust her administrative remedies. Upon
consideration of the motion, the response and reply thereto,
the applicable law, the entire record, and for the reasons
stated below, the DOL's motion is DENIED.
Civil Service Reform Act of 1978 (" CSRA" ), 5
U.S.C. § 1101 et seq., establishes a
comprehensive framework for evaluating employment actions
taken against federal employees. When a serious adverse
personnel action, such as a discharge, demotion, or reduction
in pay, is taken against a federal employee, the employee may
appeal the adverse action to the Merit Systems Protection
Board (" MSPB" or " the Board" ). 5
U.S.C. § § 7512, 7701. The MSPB is an independent
adjudicator of federal employment disputes. An appeal to the
MSPB may allege that the personnel action was impermissible
solely as a matter of civil service law, or the appeal may
allege that the personnel action was taken, in whole or in
part, based on discrimination prohibited by another federal
statute, such as Title VII of the Civil Rights Act.
See 5 U.S.C. § 7702. These latter types of
actions are known as " mixed cases" because they
allege violations of both civil service law and civil rights
law. See 29 C.F.R. § 1614.302.
federal employee who seeks to file a mixed case has two
options to begin the grievance process: (1) file a
discrimination complaint with the agency through the
agency's Equal Employment Opportunity (" EEO" )
Office, or (2) file an appeal directly with the MSPB. 29
C.F.R. 1614.302(a); 5 C.F.R. 1201.154(a). An employee cannot
maintain the same action in both forums; she must exhaust her
administrative remedies in the forum where her complaint or
appeal was first filed. 29 C.F.R. 1614.302(b); Schlottman
v. Perez, 739 F.3d 21, 22, 408 U.S.App.D.C. 21 (D.C.
Cir. 2014). Where the employee pursues a mixed case complaint
within the agency, she may appeal an adverse agency decision
to the MSPB, or sue directly in federal district court. 5
C.F.R. § 1201.154(b); 29 C.F.R. §
1614.302(d)(1)(i). Where the employee pursues a mixed case
appeal with the MSPB, she may appeal an adverse decision by
filing suit in federal district court. 5 U.S.C. §
September 25, 2011, Ms. Rodgers was appointed as Director of
Human Resources at the Employment Training Administration
(" ETA" ) of the Department of Labor ("
DOL" ). Compl., Docket No. 1 at ¶ 9. When the DOL
first offered Ms. Rodgers the position, she was told she
would be compensated at the GS-15, Step 7 pay level.
Id. at ¶ 7. Ms. Rodgers informed the DOL that,
based on her prior employment at the Federal Deposit
Insurance Company (" FDIC" ), her proper salary
level was GS-15, Step 9. Id. at ¶ 8. The DOL
then offered Ms. Rodgers the position at the GS-15, Step 9
level, and Ms. Rodgers accepted. Id. at ¶ 9.
March of 2012, Ms. Rodgers informed her immediate supervisor,
Lisa Lahrman (" Ms. Lahrman" ), that she was being
sexually harassed by Jose Conejo (" Mr. Conejo" ),
one of Ms. Rodgers's subordinates. Id. at ¶
11. According to the complaint, Ms. Lahrman was unsympathetic
and refused to take action. Id. In April 2012, Ms.
Rodgers attempted to report Mr. Conejo to the DOL's EEO
Officer, but was told she could not file an EEO claim because
he was her subordinate. Id. Ms.
Rodgers took no further action until she was approached by
three other women, two of whom were Mr. Conejo's
subordinates, who reported that he had been sexually
harassing them as well. Id. at ¶ 12. Ms.
Rodgers again went to the EEO Office and reported Mr.
Conejo's conduct. Id.
October 2012, Ms. Rodgers began to prepare Mr. Conejo's
performance evaluation. Id. at ¶ 13. Ms.
Rodgers planned to note his poor performance and harassing
conduct on his evaluation, but Ms. Lahrman refused to accept
the evaluation and generally dismissed Ms. Rodgers's
concerns. Id. In early November 2012, Ms. Lahrman
called Ms. Rodgers into her office and questioned her about
the starting salary she received upon entering the DOL.
Id. This was the first time anyone had questioned
Ms. Rodgers about her appropriate within-grade step since she
accepted the DOL's employment offer more than a year
earlier. Id. Following the November 2012 meeting,
Ms. Lahrman demanded a review of Ms. Rodgers within-grade
step. Id. at ¶ 14. Ms. Lahrman retroactively
downgraded Ms. Rodgers from a Step 9 to a Step 6.
Id. The agency then began to initiate an effort to
recover the purported overpayment. Id.
Rodgers filed a timely appeal of the step reduction to the
MSPB in March of 2013. Id. at ¶ 15. Ms. Rodgers
initiated the appeal by submitting an online form. Def.'s
Mot. Dismiss, Docket 19, Ex.1. She did not have counsel at
the time she completed the form. Pl.'s Mem. Opp.
Def.'s Mot. Dismiss. (" Pl.'s Mem. Opp." ),
Docket No. 20 at 1. On the online form, Ms. Rodgers checked
the boxes for " harmful procedural error" and
" whistleblower," but did not check the box for
prohibited discrimination. Def.'s Mot. Dismiss., Docket
No. 19, Ex. 1 at 5.
2, 2013, Ms. Rodgers, through counsel, filed a motion to
alter the hearing scheduled in her MSPB appeal. Def.'s
Mot. Dismiss, Docket No. 19, Ex. 3. The motion indicated that
Ms. Rodgers sought an extension of time " to allow for a
reasonable period of time for taking discovery and for
amending the claims to include retaliation under Title VII of
the Civil Rights Act, which claim was meant to be included in
this appeal (making it a " mixed case" ). . .
." . Id. (parenthetical in original). The
motion further indicated that it was Ms. Rodgers's
intention to claim that her reduction in pay was motivated by
her prior protected EEO activity -- that is, her reporting
Mr. Conejo's sexual harassment -- but had mistakenly
checked " whistleblower" rather than "
discrimination" believing that it was the proper box for
a retaliation claim. Id.
Rodgers never formally amended her MSPB appeal form.
Def.'s Mot. Dismiss, Docket 19 at 3. However, in an
initial telephone conference held before the MSPB
Administrative Law Judge (ALJ) on May 6, 2013, Ms. Rodgers
informed the ALJ that she was bringing a " mixed
case" and that she wished to bring her Title VII claims
before the MSPB as well. Pl.'s Mem. Opp., Docket No. 20
Rodgers then sought discovery from the DOL on both the CSRA
and Title VII issues. Pl.'s Mem. Op., Docket 20, Ex. 1 at
2. When the DOL failed to respond, Ms. Rodgers moved to
compel. Id. In her motion to compel, Ms. Rodgers
reiterated her intention to bring a mixed case appeal before
The result of this conference is that there is no question
that Ms. Rodgers's appeal presents a mixed case, and,
therefore, she is entitled to discovery on all issues
relevant to her appeal -- both
on the civil service law merits and on discrimination and