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McGary v. Hessler-Radelet

United States District Court, District of Columbia

February 25, 2016

CARRIE HESSLER-RADELET, Director of the Peace Corps, et al., Defendants.


RANDOLPH D. MOSS, United States District Judge.

Proceeding pro se, Plaintiff Theodor McGary brings this action against the Director of the Peace Corps, another Peace Corps employee (who served as one of Plaintiff’s supervisors), and the former Chairwoman of the Equal Employment Opportunity Commission (“EEOC” or “Commission”). The case arises in an unusual posture. The EEOC has already concluded that the Peace Corps unlawfully retaliated against Plaintiff for complaining that he was the victim of racial discrimination, and it has granted him substantial relief-in excess of $400, 000 for backpay and interest. Plaintiff, understandably, does not challenge the EEOC’s liability determination. Rather, his principal claim is that the relief the Commission awarded failed to make him whole. This Court’s authority, however, does not divide so neatly-a plaintiff may not challenge an EEOC damage determination without re-litigating the question of liability. See Scott v. Johanns, 409 F.3d 466, 469 (D.C. Cir. 2005). As a result, Plaintiff’s only options with respect to his principal claim are to accept the Commission’s decision and, if necessary, seek the Court’s assistance in enforcing that decision, or to reject that decision and start from scratch. Id. As Plaintiff explained at oral argument, it is his intention to follow the latter course. Before Plaintiff can do so, however, he must clear a number of hurdles raised in Defendants’ motion to dismiss. See Dkt. 14.

Defendants’ motion to dismiss raises five defenses. The motion first argues that Plaintiff did not bring his claim within the six-year default statute of limitations for claims against the United States, 28 U.S.C. § 2101(a). Defendants now concede, however, that this argument is foreclosed by the D.C. Circuit’s intervening decision in Howard v. Pritzker, 775 F.3d 430, 438 (D.C. Cir. 2015), and they have thus withdrawn the defense. Dkt. 21. Second, Defendants contend that Plaintiff failed to file suit within 90 days of when he received notice of the EEOC’s final determination, as required by statute. As explained below, that defense turns on issues of fact and, accordingly, cannot be decided on a motion to dismiss. Third, Defendants maintain that Plaintiff cannot sue the EEOC for “alleged negligence or malfeasance in processing an employment discrimination claim.” Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam). At oral argument, however, Plaintiff clarified that he is not suing the EEOC on that ground, but rather arguing that the Commission violated his rights by retaliating against him for engaging in activity protected by the First Amendment. Because that claim is not adequately stated in the Complaint, the Court will grant Defendants’ motion to dismiss the pending claim against the EEOC. To the extent Plaintiff wants to a constitutional claim, he may promptly file a motion for leave to amend. Fourth, Defendants argue that Plaintiff has failed to allege any cause of action against any individual member of the Peace Corps, as opposed to a claim against the Director, acting in her official capacity. Plaintiff also clarified at oral argument that he is not seeking to recover from anyone in their individual capacity, and thus the Court will also grant Defendants’ motion to dismiss the claim against David Janssen and, to the extent it is alleged, any claim against the current or former Peace Corps Director acting in her or his personal capacity. Finally, Defendants argue that Plaintiff must choose whether he is seeking to enforce the EEOC’s order or challenging its determination. Because Plaintiff made clear at oral argument that he was seeking the latter, the Court will deny Defendants’ request for clarification as moot.


For purposes of Defendants’ motion to dismiss, the following allegations are taken as true. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Plaintiff Theodore McGary was a Peace Corps employee when, in August 2000, he learned that two white coworkers had received step increases while he received only a $400 cash award. Compl. ¶ 1. He responded by contacting an Equal Employment Opportunity (“EEO”) counselor and filing an EEO complaint alleging racial discrimination. Id. A week later, Plaintiff’s supervisor issued a proposed reprimand, asserting that Plaintiff had made false charges and had created a hostile and intimidating work environment. Id. ¶ 2. In September 2000, the deciding official issued the reprimand, stating that he was “concerned that [Plaintiff] ha[d] raised charges of racism that are inflammatory and do not appear to be relevant.” Id. The deciding official further explained that the reprimand, the proposed reprimand, and Plaintiff’s response would all be placed in Plaintiff’s official personnel file (“OPF”) for one year. Id. Plaintiff responded by filing a second EEO complaint in October 2000, this time alleging that the reprimand was in retaliation for his racial-discrimination complaint. Compl. ¶ 3. A month later, the same supervisor who recommend Plaintiff’s reprimand proposed that he be fired. Id. That recommendation was sustained in January 2001. Id. ¶ 4-5. Plaintiff was initially placed on leave without pay, but after his appeal to the Foreign Service Grievance Board was rejected, the Peace Corps fired Plaintiff on May 2, 2002. Id.

The procedural history that followed was long and complex, spanning more than a decade and including an administrative hearing and appeal, along with numerous motions for reconsideration and for enforcement. On multiple occasions along the way, Plaintiff contacted the office of Senator John Warner and asked for help moving the process along. Compl. ¶¶ 7, 20. He also requested similar assistance from the White House. Id. ¶ 26. The EEOC eventually found in Plaintiff’s favor and directed that the Peace Corps expunge from its records any material related to Plaintiff’s discharge, reinstate Plaintiff retroactive to the date on which he was terminated, pay his attorney’s fees, and pay Plaintiff $15, 000 in non-pecuniary damages. Id. ¶ 11. After the Peace Corps appealed, however, the Commission clarified or modified that order in certain respects. Id. ¶ 28. Among other things, in light of the Peace Corps’s contention that it no longer possessed Plaintiff’s employment records, the Commission rejected the contention that the Peace Corps was in “non-compliance” for failing to expunge them. Id. The EEOC also accepted the Peace Corps’s argument that, absent unusual circumstances, employment with the Corps is limited to a period of five years, which precluded reinstatement and limited the amount of backpay due. Id. And, with respect to backpay, the Commission concluded that Plaintiff had not cooperated with the Peace Corps because he failed to provide evidence of his employment during the period following his termination, which would go to mitigation of damages. Id. The Commission did, however, provide Plaintiff with “one more opportunity to provide” the necessary information to the Peace Corps and cautioned that, if he failed to do so, he risked the loss of any right to receive backpay. Id. In response to Plaintiff’s request for reconsideration, the Commission reaffirmed its decision and, once again, warned Plaintiff that a failure to provide information relating to his mitigation efforts could result in the denial of his claim for backpay. Id. ¶ 31.

On April 26, 2013, the EEOC issued its final determination, denying Plaintiff’s request for further reconsideration. Dkt. 14-2. Among other things, that order directed that the Peace Corps submit a compliance report to the Commission within 30 days “of the completion of all ordered corrective action.” Id. at 3. The final determination also informed Plaintiff of his right to bring a civil action in federal district court “within ninety (90) calendar days from the date that [he] receive[d] th[e] decision, ” explained that, if he decided to bring suit, he should name “the person who is the official Agency head or department head, ” and cautioned that “[f]ailure to do so may result in dismissal of [his] case in court.” Id. at 4. One hundred and two days after the Commission issued its final decision, Plaintiff filed this action against the Director of the Peace Corps, David Jannsen (one of Plaintiff’s former supervisors) and the Chairwoman of the EEOC. Dkt. 1. Although the complaint does not identify a specific cause of action, Plaintiff purports to “appeal” the EEOC’s decision. Id. Among other relief, he seeks backpay, front pay, restoration of his Thrift Savings Plan account and matching contributions, expungement of his personnel file, and $2, 000, 000 for compensatory and punitive damages. Id. ¶ 42. If lieu of answering, Defendants filed the pending motion to dismiss. Dkt. 14.

Almost a year after this action was commenced, the Peace Corps filed the required compliance report with the Commission. Dkt. 14-3. According to that report, Plaintiff ultimately provided the documentation necessary to assess potential mitigation of any backpay award. Id. at 2. Based on that information, the Peace Corps calculated the net backpay that it believed Plaintiff was due under the EEOC’s order. Id. Before various deductions for taxes and retirement contributions, that amount came to $411, 470.33. Id. According to the Peace Corps, it paid this amount to Plaintiff, and he does not dispute that he received it. Id.


A motion to dismiss under Rule 12(b)(1) challenges the Court’s jurisdiction to hear the claim, and may raise a “facial” or “factual” challenge to the Court’s jurisdiction. A facial challenge asks whether the plaintiff has pleaded facts sufficient to establish the court’s jurisdiction, while a factual challenge asks the court to “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.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). In other words, a facial challenge is confined to the four corners of the complaint, while a factual challenge permits the court to look beyond the complaint to satisfy itself that it has jurisdiction to hear the suit. Whether the motion to dismiss is facial or factual, the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject-matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

A motion to dismiss for failure to state a claim under Rule 12(b)(6), in contrast, must accept the factual allegations of the complaint as true and may not rely on evidence or factual material beyond those allegations. A defendant can therefore prevail on a 12(b)(6) motion only by demonstrating that the facts, as alleged in the complaint, do not warrant relief as a matter of law. In reviewing a 12(b)(6) motion, a court need not accept legal conclusions as true. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006). Rather, the question for the court is whether and the factual allegations “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).


A. The Six-Year Statute of Limitations in 28 U.S.C. § 2401(a)

Defendants’ first argument in their motion to dismiss, Dkt. 14, asserted that the six-year statute of limitations in 28 U.S.C. § 2401(a) barred Plaintiff from pursuing his claim. See Dkt. 14-1 at 5-6. While Defendants’ motion was pending, however, the D.C. Circuit issued its decision in Howard, 775 F.3d at 436, which held that ยง 2401(a) is inapplicable to Title VII. The government promptly informed the Court of this intervening authority and withdrew ...

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