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Rodgers v. Perez

United States District Court, D. Columbia

September 29, 2015

THOMAS E. PEREZ, Secretary of Labor, Defendant

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[Copyrighted Material Omitted]

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         For SAKEITHEA RODGERS, Plaintiff: David H. Shapiro, SWICK & SHAPIRO, P.C., Washington, DC.

         For THOMAS E. PEREZ, Secretary of Labor, Defendant: Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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         Emmet G. Sullivan, United States District Judge

         Plaintiff 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,

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the applicable law, the entire record, and for the reasons stated below, the DOL's motion is DENIED.

         I. BACKGROUND

         A. Statuary Framework

         The 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.

         A 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. § 7703(b)(2).[1]

         B. Factual Background

         On 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.

         In 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.

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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.

         In 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.

         C. Procedural History

         Ms. 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.

         On May 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.

         Mr. 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 at 4.

         Ms. 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 MSPB:

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

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on the civil service law merits and on discrimination and ...

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