United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
Theodore Duncan brought this employment discrimination
lawsuit against Jeh Charles Johnson, the Secretary of the
United States Department of Homeland Security ("the
agency" or "DHS"). Plaintiff alleges that DHS
violated the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § 621, et seq.
("ADEA"), and Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e, et seq.
("Title VII"), when it discriminated against him
based on his age and his gender, and when it retaliated
against him in violation of Title VII for engaging in the
protected activity of lodging a discrimination complaint.
Compl. [Dkt. # 1], Defendant has moved for summary judgment
on all three counts on multiple grounds. Def's Mot. for
Summ. J. [Dkt. # 14] ("Def's Mot."); Def's
Mem. of P. & A. in Supp. of Def's Mot. [Dkt. # 16-1]
("Def's Mem."), and plaintiff has opposed the
motion. Pl.'s Opp. to Def's Mot. [Dkt. #20]
("Pl.'s Opp."). After reviewing the entire
record, the Court concludes that several of plaintiffs claims
have not been properly exhausted, and a few fail for lack of
an adverse employment action. The claims that remain fail on
has come forward with nothing to support his age and gender
discrimination claims. His allegations boil down to the fact
that the new supervisor who made him miserable was female and
younger than he was. But he has presented no evidence that
would indicate that her treatment of him was motivated by any
sort of discriminatory animus, and indeed, he does not press
the point very strongly in his opposition. Even if it is
true, as he asserts, that she was not as experienced or as
qualified as he was, he certainly cannot complain that she
was unfairly or unlawfully elevated to a supervisory position
for which he did not even apply. So the Court will grant
summary judgment in favor of defendant on the two
focuses his efforts on the retaliation count, and he
demonstrates that he was the subject of a number of
disciplinary or potentially adverse actions after he made an
EEO complaint. But the evidence of the necessary causal
connection is quite thin and attenuated, and more important,
plaintiff has failed to meet his burden to produce evidence
that would lead a reasonable juror to conclude that the
legitimate, non-discriminatory reasons proffered by the
defendant for its actions were in fact a pretext for
retaliation. So defendant's motion for summary judgment
will be granted on the retaliation claims as well.
facts are not in dispute except where noted. Plaintiff, a
56-year-old male, worked as a GS-15 Intelligence Research
Specialist at U.S. Immigration and Customs Enforcement
("ICE"), a component of DHS. Def's Statement of
Material Facts Not in Genuine Dispute [Dkt. # 18-1]
("Def.'s SOF") ¶¶ 1-2; Pl.'s
Statement of Material Facts For Which There Is A Material
Dispute [Dkt. # 21-1] ("Pl.'s SOF")
¶¶ 1-2. From 2003 onward, plaintiff worked in the
Office of Intelligence within the Homeland Security
Investigations office, an office that "conducts broad
intelligence operations and develops data for use by ICE,
[DHS], and other law enforcement partners related to illegal
trade, travel, and financial activity." Def's SOF
¶¶ 3, 14; Pl.'s SOF ¶¶ 3, 14.
Beginning in October 2006, plaintiff served as the Deputy
Assistant Director ("DAD") of Intelligence Programs
within Homeland Security Investigations. Def's SOF ¶
15; Pl.'s SOF ¶ 15. Plaintiffs official title
remained "Supervisory Intelligence Research Specialist,
" though his "organizational titles" changed
numerous times between 2006 and November 2013. Def's SOF
¶ 16; Pl.'s SOF ¶ 16.
Assignment to Work Under the DAD of Analysis
2011, DHS issued a vacancy announcement for the position of
Deputy Assistant Director of Analysis, and published the
announcement on USA Jobs and through an intelligence
community jobs database. Def's SOF ¶ 22; Pl.'s
SOF ¶ 22; see Ex. 13 to Def's Mot. [Dkt. #
18-2] (vacancy announcement). Plaintiff did not submit an
application for the job. Def's SOF ¶ 24; Pl.'s
SOF ¶ 24. Ultimately, Stephanie Andrews was selected for
the position for a term not to exceed one year. Def's SOF
¶¶ 25-27, 30; Pl.'s SOF ¶¶ 25-27,
in September 2011, Homeland Security Investigations
discontinued the project on which plaintiff had been working,
and plaintiff was reassigned to the vacant position of Acting
Unit Chief of Travel, where he reported to the
newly-appointed DAD of Analysis, Andrews. Def's SOF
¶¶ 4, 19; Pl.'s SOF ¶¶ 4, 19. At the
time, plaintiff had been working in Baltimore, but with the
October 2011 reassignment, he was required to work in
Washington, D.C. See Def's SOF ¶¶ 17,
20; Pl.'s SOF ¶¶ 17, 20.
Ms. Andrews's appointment as DAD of Analysis was limited
to a 12-month term, ICE advertised for the DAD of Analysis
position again in July of 2012, this time describing the
position as "Full Time - Permanent." Ex. 13 to
Def's Mot. at 102. Plaintiff did not apply for the
position that time either. Def's SOF ¶ 32; Pl.'s
SOF ¶ 32. Ms. Andrews was selected again, and she became
the permanent DAD of Analysis in November 2012. Def's SOF
¶¶ 33-34; Pl.'s SOF ¶¶ 33-34.
Plaintiff served as Acting Unit Chief of Travel from October
2011 through February of 2013. Def's SOF ¶ 4;
Pl.'s SOF ¶ 4.
April 2012 Letter of Counseling and Mid-Cycle Performance
failed to attend a meeting on April 2, 2012, and he explained
that he missed the meeting because he was taking a personal
telephone call. Def's SOF ¶¶ 42-43; Pl.'s
SOF ¶¶ 42-43. On April 30, 2012, after plaintiff
arrived late to three other meetings, and after Andrews
consulted with the ICE office of Employee and Labor Relations
("ELR"), and the Office of the Principal Legal
Advisor ("OPLA"), Andrews issued plaintiff a letter
of counseling relating to his "ongoing failure to attend
and be on time for scheduled meetings and training and for
unprofessional behavior." Def's SOF ¶¶
40-41, 47-48; Pl.'s SOF ¶¶ 40-41, 47-48. The
letter explained that plaintiff was late for three meetings,
and missed another meeting entirely. Def's SOF ¶ 41;
Pl.'s SOF ¶ 41; Ex. 16 to Def's Mot. [Dkt. #
18-2] at 126-28. The letter was not placed in plaintiffs
official personnel folder, but the agency informed him that
it could "be relied upon if similar incidents of the
same nature occur again." Ex. 16 to Def's Mot. at
127. Plaintiff maintains that his need to take a personal
call should have excused him from the April 2 meeting, and
that the letter of counseling was an improper overreaction.
Def's SOF ¶¶ 45-46; Pl.'s SOF ¶¶
same day that the letter of counseling was delivered, Andrews
also issued a mid-cycle appraisal of plaintiff s work
performance, which covered the period of November 10, 2011
through April 15, 2012. Def's SOF ¶ 50; Pl.'s
SOF ¶ 50; Ex. 17 to Def's Mot. [Dkt. # 18-2] at
47-71. The mid-cycle review is used by supervisors to discuss
the performance of their direct reports. Def's SOF
¶¶ 54-55; Pl.'s SOF ¶¶ 54-55. The
appraisal, which was drafted with input from ELR and OPLA,
noted that plaintiff was not meeting his performance
standards, and that his performance was "unacceptable in
several core competencies." Ex. 17 to Def's Mot. at
146. Plaintiff prepared a written response to the mid-cycle
appraisal; he admitted that many of the events cited had
occurred, but he attempted to provide excuses for each event,
and he argued that the facts did not justify the conclusion
that his behavior was unacceptable or unprofessional.
Def's SOF ¶ 56; Pl.'s SOF ¶ 56; Ex. 18 to
Def's Mot. [Dkt. # 18-2], The May 10, 2012
Performance Improvement Plan
10, 2012, Andrews issued plaintiff a Performance Improvement
Plan. Ex. 19 to Def's Mot. [Dkt. # 18-2]
("PIP") at 176-96. The PIP "outline[d]
activities that [plaintiff] must complete to attain at least
an achieved expectations rating on the critical elements in
which [his] performance ha[d] fallen to an unacceptable
level, " and it gave him sixty calendar days to do so.
Id. at 176-77. On July 13, 2012, Andrews notified
plaintiff that he had failed the PIP, Def's SOF ¶
63; Pl.'s SOF ¶ 63, but no adverse action was taken
against him as a result. Def.'s SOF ¶ 64;
agency's procedures for suspending employees.
determining how to discipline its employees, DHS utilizes the
"Policy on Discipline and Adverse Action Operating
Procedures" ("DAAOP"). Def.'s SOF ¶
74; Pl.'s SOF ¶ 74; Ex. 24 to Def.'s Mot. [Dkt.
# 18-2] (attaching a copy of the DAAOP). The process beings
when a manager refers a conduct issue to the Employee and
Labor Relations department. See Ex. 24 to Def.'s
Mot. at 234. ELR then makes a presentation to a panel of
three GS-15 employees, one from Homeland Security
Investigations, one from Enforcement and Removal Operations,
and one from Management and Administration, which the parties
refer to as a "DAAP Panel." Def.'s SOF
¶¶ 74-76; Pl.'s SOF ¶¶ 74-76. After
the presentation, the panel members come to a consensus
agreement on the discipline to be imposed, and they provide
the employee with their recommended sanction. Def s SOF
¶ 76; Pl.'s SOF ¶ 76. The employee is then
given a chance to respond to the recommended sanction.
See Ex. 24 to Def.'s Mot. at 229. Finally,
"[t]he Deciding official. . . reviews the charges in the
proposal notice, the investigative file, the employee's
reply, and aggravating and mitigating factors in order to
make a final decision on [the proposed adverse action]."
Id. at 230.
June 2012 three day suspension
Friday, May 11, 2012, Andrews assigned plaintiff a
time-sensitive, classified project. Def's SOF
¶¶ 78-79; PI. SOF ¶¶ 78-79. Defendant
contends that plaintiff was instructed that the project was
due on Monday, May 14, 2012. Def's SOF ¶ 79.
Plaintiff argues that the assessment was actually due on May
10, 2012, and that it was already overdue when Andrews
assigned the task to him. Pl.'s SOF ¶ 79. In any
event, plaintiff took unscheduled leave on May 14, 2012, and
despite being in touch with Andrews multiple times over the
course of the day, he failed to communicate that the
assessment was due and locked in his personal safe. Def's
SOF ¶ 80; Pl.'s SOF ¶ 80. The agency contends
that plaintiffs communication failure led to the untimely
completion of the assessment, and also wasted other
employees' time. Def's SOF ¶ 81.
reported the incident to ELR, and ELR submitted the matter to
a review panel. Def's SOF ¶¶ 82-83; Pl.'s
SOF ¶¶ 82-83. The review panel concluded that
plaintiff should be suspended for five days. Def's SOF
¶ 84; Pl.'s SOF ¶ 84; see Ex. 26 to
Def's Mot. [Dkt. # 18-2] at 253-57 (June 1, 2012 proposed
suspension letter). Plaintiff submitted his response in
writing, and Frank Reeder, the final decision maker,
mitigated the length of the suspension to three days.
Def's SOF ¶ 87; Pl.'s SOF ¶ 87; Ex. 26 to
Def's Mot. at 250.
January 2013 seven day suspension
months later, on October 17, 2012, plaintiff was informed
that another DAAP Panel had recommended that he be suspended
for fourteen days. Def's SOF ¶ 94; Pl.'s SOF
¶ 94. The panel contended that the suspension was
warranted in light of plaintiff s: "(1) Failure to
Promptly and fully comply with directions, instructions, or
assignments of a supervisor; (2) Absence without Leave
(AWOL); (3) Making misstatements or misrepresentations, [and]
(4) Unprofessional behavior." Def's SOF ¶ 94;
Pl.'s SOF ¶ 94; see also Ex. 31 to
Def's Mot. [Dkt. # 18-2] at 316. Thereafter, Robert
Bentall, the Chief of Staff of HSI-Intelligence, sustained a
few of the charges against plaintiff (1) the charge that
plaintiff was AWOL on September 12, 2012, (2) the charge that
he made misrepresentations regarding his leave on that date;
and (3) that he was "argumentative in [his] July 6, 2012
communication with [his] supervisor." Ex. 31 to
Def's Mot. at 316-17. In light of plaintiffs contrition,
Bentall mitigated the proposed suspension from fourteen days
to seven days. Id.
December 2012, Andrews suspected that plaintiff had
improperly distributed information about a confidential
informant, Def's SOF ¶ 101, and she reported her
concerns to the ICE Personnel Security Unit. Def's SOF
¶¶ 102-03; Pl.'s SOF ¶¶ 102-03.
Though the facts are a bit murky on what happened next, it
appears that plaintiffs security clearance was suspended
pending further investigation. See Pl.'s SOF
¶ 102 (noting that Andrews, in reporting plaintiff, knew
that the report "would at least result in the temporary
suspension of his security clearance."). While
plaintiffs clearance was suspended, he held the same
position, but his duties were changed because he no longer
had access to classified information, which was necessary to
perform his job as Unit Chief of Travel. Def's SOF ¶
106; Pl.'s SOF ¶ 106. Plaintiffs clearance was
reinstated about three months after it was suspended.
Def's SOF ¶ 107; Pl.'s SOF ¶ 107.
April 12, 2013, after plaintiffs security clearance had been
reinstated, Reeder emailed Bentall and asked him to think
about where plaintiff could be assigned "that will add
the greatest value to the office and take appropriate
advantage of his grade and experience, " and Reeder
encouraged Bentall to "ask [plaintiff] where he would
like to work." Def's SOF ¶ 108; Pl.'s SOF
¶ 108. The parties disagree about what followed.
Defendant asserts that Bentall presented plaintiff with two
options, both GS-15 positions: one was a supervisory
position, and one was a non-supervisory policy position.
Def's SOF ¶ 109, citing Dep. of Roger Bentall (Oct.
1, 2015), Ex. 33 to Def's Mot. [Dkt. # 15-3]
("Bentall Dep") at 79:8-80:1. Plaintiff contends
that he was not informed that there were two positions, nor
was he presented with an option for a supervisory position.
Pl.'s SOF ¶ 109.
January 7, 2014, Bentall issued a Notification of
Reassignment to plaintiff, which reassigned him from his
position as a Supervisory Intelligence Research Specialist to
an Intelligence Research Specialist, effective November 17,
2013. Def's SOF ¶ 112; Pl.'s SOF ¶ 112.
After the reassignment, which did not have an effect on his
grade, salary, or pay, plaintiff was assigned to work in a
cubicle instead of being provided with an office. Def's
SOF ¶¶ 113- 114; Pl.'s SOF¶¶ 113-14.
made his first contact with ICE's Office of Diversity and
Civil Rights ("ODCR") on May 11, 2012, the day
Andrews placed him on the PIP. Ex. 8 to Def's Mot [Dkt. #
18-2] at 40. His initial report alleged discrimination based
on race, age, and parental status, and it pointed to the
April 2012 letter of counseling and the May 2012 placement on
a performance improvement plan, as well as alleged harassment
by Andrews. Id. at 40-42. More than six months
later, on November 30, 2012, plaintiff submitted his first
and only formal complaint of discrimination to ODCR. Ex. 9 to
Def's Mot. [Dkt. # 18-2] at 44-49. The complaint alleged
sex and age discrimination and unlawful reprisal.
Id. Plaintiff stated that beginning in October 2011,
when Andrews became the DAD of Analysis, "she proceeded
to create a working environment that is beyond hostile and
consisted of daily micro-managing, intense targeting and
harassment that continues to this very day."
Id. at 46. He alleged that after he received the
April 30, 2012 letter of counseling from Andrews, and he
complained about it, the agency took the following
• May 10, 2012: Placing plaintiff on a performance
improvement plan for sixty days, id.;
• June 30, 2012: Suspending plaintiff for three days for
"not conducting official business while on emergency
personal leave, " id.;
• July 1, 2012: Informing plaintiff that he failed the
performance improvement plan, id.; and
• October 15, 2012: Suspending plaintiff for two weeks.
expressed the fear that Andrews's conduct would lead him
to suffer a "heart attack, " and he stated that her
"[e]xcessive monitoring, piling on, targeting and
harassment . . . has been consistent and elevated."
Id. at 48.
filed this action in federal court on October 1, 2014. Compl.
In Count I, plaintiff alleges that defendant discriminated
against him based on his age in violation of the ADEA when he
(1) was "subjected to a hostile working environment
created by Andrews"; (2) received the negative Mid-Cycle
review; (3) was placed on a PIP; (4) was suspended for three
days; (5) was not selected for the position of DAD of
Analysis; (6) was suspended for one week; (7) was
"investigated based on false allegations" related
to his security clearance; and (8) was "involuntarily
permanently reassigned from a supervisory GS-15 to a
non-supervisory GS-15." Compl. ¶63. In Count II,
plaintiff alleges that the same eight circumstances
constituted discrimination based on gender in violation of
Title VII. Id. ¶ 71. And in Count III,
plaintiff claims that a set of seven actions were taken in
retaliation for the protected activity of "filing EEO
complaints and reporting age and gender discrimination,
" in violation of Title VII: (1) being placed on a PIP;
(2) being suspended for three days; (3) receiving the
proposal that he be suspended for two weeks; (4) the
non-selection as DAD of Analysis; (5) the one-week
suspension; (6) "being investigated based on false
allegations"; and (7) being reassigned to a
non-supervisory position. Id. ¶¶ 83-85.
December 15, 2015, defendant moved for summary judgment.
Def's Mot. Plaintiff opposed the motion on January 22,
2016, Pl.'s Opp., and defendant replied in support of his
motion on February 11, 2016. Def's Mem. of P. & A. in
Reply to Pl.'s Opp. [Dkt. # 25-1] ("Def's
judgment is appropriate "if 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). The party seeking summary judgment
"bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). To defeat summary judgment, the non-moving
party must "designate specific facts showing that there
is a genuine issue for trial." Id. at 324
(internal quotation marks omitted).
mere existence of a factual dispute is insufficient to
preclude summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). A dispute is
"genuine" only if a reasonable fact-finder could
find for the non-moving party; a fact is "material"
only if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S.
Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing
a party's motion, the court must "view the facts and
draw reasonable inferences 'in the light most favorable
to the party opposing the summary judgment motion.'"
Scott v. Harris, 550 U.S. 372, 378 (2007)
(alterations omitted), quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam).
claims that the agency discriminated against him on the basis
of both his age and his gender in connection with the Letter
of Counseling, the PIP, and the two suspensions, and in
failing to select him for the DAD position and later
reassigning him to a non-supervisory position. He also claims
that many of the agency's actions were taken in
retaliation for the fact that he made an EEO complaint.
According to the plaintiff, "the Agency failed to
discipline Ms. Andrews in any fashion for similar misconduct,
" and "Ms. Andrews increased her harassment of
Plaintiff after his involvement in EEO activity."
Pl.'s Opp. at 3.
is no question that the relationship between the plaintiff
and his supervisor was marked with conflict from the
beginning, and it may be that she had a tendency to
micromanage, or that she was petty or difficult to work with
for myriad reasons. But in the absence of evidence of
discrimination or retaliation, it is not the Court's role
to act as a "super-personnel department."
Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir.
2006), quoting Barbour v. Browner, 181 F.3d 1342,
1346 (D.C. Cir. 1999). Here, plaintiff has failed to exhaust
his administrative remedies with respect to some of his
allegations, and others do not rise to the level of
actionable adverse actions. On the issues that remain,
plaintiff has not pointed to any facts that would tie any of
the agency's actions to unlawful bias against him because
of his age or his gender. And with respect to the alleged
retaliation, since defendant has come forward with evidence
to show that plaintiff was disciplined because of his poor
job performance, and not for a retaliatory purpose, and
plaintiff has failed to come forward with evidence to show
that defendant's stated reasons were either pretextual or
tainted by any alleged improper animus on the part of his
supervisor, the Court will grant defendant's motion for
Plaintiffs age and gender discrimination claims in Counts I
and II fail.
The exhaustion issue
first moves for summary judgment on Counts I and II on the
grounds that four of the seven events alleged to be
discriminatory were not administratively exhausted: (1) the
August 7, 2011 reassignment to the position of Acting Unit
Chief and assignment to ICE Headquarters in Washington, D.C.;
(2) the July 9, 2012 three-day suspension; (3) the January
15, 2013 seven-day suspension; and (4) the December 6, 2013
suspension of plaintiffs security clearance. But the Court
will only enter judgment for the defendant on one of these
allegations on exhaustion grounds.
the ADEA and Title VII require that before filing a lawsuit
in federal court, a plaintiff must timely pursue and exhaust
administrative remedies. Hamilton v. Geithner, 666
F.3d 1344, 1349 (D.C. Cir. 2012) (Title VII); Washington
v. Wash. Metro Transit Auth., 160 F.3d 750, 752 (D.C.
Cir. 1998) (Title VII & ADEA); see also Bowden v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997) (Title VII).
To timely exhaust administrative remedies, an employee must
consult an agency EEO Counselor within forty-five days of the
alleged discriminatory event, 29 C.F.R. § 1614.105, and
must file a formal complaint within 180 days of the alleged
discriminatory event. See generally 42 U.S.C. §
2000e-16; 19 C.F.R. § 1614.106(a).
procedural requirements governing [a] plaintiffs right to
bring a Title VII claim in federal court are not
trivial." Rattigan v. Gonzales, 503 F.Supp.2d
56, 68 (D.D.C. 2007). "Because timely exhaustion of
administrative remedies is a prerequisite to a Title VII
action against the federal government, " a court may not
consider a discrimination claim that has not been exhausted.
Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir.
2003). However, the D.C. Circuit has made clear that
"the exhaustion of remedies is not jurisdictional, but
more akin to a statute of limitations, " id. at
425, which is therefore "subject to equitable tolling,
estoppel, and waiver." Doak v. Johnson, 798
F.3d 1096, 1104 (D.C. Cir. 2015), quoting Bowden,
106 F.3d at 437.
Plaintiffs claim with regard to his 2011 reassignment to the
Unit Chief position was not administratively
alleges that his initial August 8, 2011 assignment to the
position of Unit Chief under Andrews's supervision was
discriminatory. Pl.'s Opp. at 12. Plaintiffs first
contact with an agency EEO Counselor was on May 11, 2012. Ex.
5 to Pl.'s Opp. [Dkt. # 21-5] (EEO Counselor's
Report). The Counselor's Report indicates that plaintiff
complained that he was discriminated against based on his age
and parental status when Andrews issued the April 30, 2012
letter of counseling, when she placed him on a PIP on May 11,
2012, and when he was subjected to her ongoing harassment
from April 30, 2012 onward. Ex. 5 to Pl.'s Opp. at 1.
Because plaintiffs first complaint did not reference the
August 8, 2011 reassignment at all, and because even if it
had, it would have been more than 45 days after the alleged
discriminatory event, defendant asserts that this claim is
time-barred. Def's Mem. at 8-9.
argues that this analysis should not bar his claim that his
2011 assignment to the Unit Chief position was discriminatory
because "[t]he facts show that Mr. Duncan believed that
the reassignment would be temporary. Further, the facts show
that Mr. Duncan did not believe his reassignment was
discriminatory until he learned it was a permanent
reassignment, meaning he was still working in the same
position, over a year later." Pl.'s Opp. at 12.
even if a later complaint would satisfy the timeliness
requirement, plaintiff has not provided any evidence to show
that he ever asserted that the reassignment was
discriminatory. In the formal complaint before the agency,
plaintiff does allege that the reassignment was a demotion.
See Ex. 9 to Def's Mot. (November 30, 2012
formal complaint). But he expresses dissatisfaction with the
post because of the burdens it imposed, and he does not raise
questions about the reasons behind it:
Throughout this assignment I consistently conveyed to ICE
management the intense financial and physical strain it as
putting on me and my family. As a single parent of 3 kids,
they made it virtually impossible for me to survive
financially and to meet my family obligations. My commute
went from 40 min[utes] one way to 2 hours and 30 min[utes]
one way and if there was any traffic delays, my commute went
to 3 hours one way. The financial toll that it has taken on
me has been devastating and I repeatedly expressed this to
ICE management but it [fell] on deaf ears.
Id. at 4. Plaintiffs response to interrogatories
before the agency makes the point even more strongly:
Personally, this detail which I was assured would only being
[sic] for 60 days has now lasted over 2 years and continues
to this very day with no end in sight has ruined my life ....
Physically, the stress from being on this detail and the
subsequent hostile attacks, daily harassment, and reprisals
has lead [sic] to [a series of medical issues],
Ex. 1 to Pl.'s Opp. [Dkt. # 21-2] ("Pl.'s
Interrogs.") at 8. So plaintiff has never put the agency
on notice of a complaint that the transfer was
discriminatory in some way, and even if the allegation had
been properly exhausted, he has not come forward with any
evidence to tie the alleged demotion to any protected
characteristic. Rather, plaintiffs concern seems to be that
that the transfer put him in a position where he would then
be discriminated against by Andrews. Because no reasonable
jury would conclude that plaintiff administratively exhausted
a claim that the transfer itself was discriminatory, or that
there was any discriminatory animus behind it, this claim
will not survive summary judgment.
The suspension claims are not barred by the exhaustion
also asserts that plaintiff failed to exhaust either of his
suspensions. Def's Mem. at 8-9. The agency contends that
because plaintiffs initial contact with the EEO Counselor was
on May 11, 2012, and his formal complaint was filed on
November 30, 2012, he did not timely exhaust the June 2012
and January 2013 actions. Id.
argues that, with regard to the three-day suspension, he
"continuously tried to contact the EEO counselor but
with no success, " and in any event, "his claims
were accepted by the EEO office and investigated for several
months, " so "[c]ertainly, the Agency's EEO
office had an opportunity to handle these matters
internally." Pl.'s Opp. at 12. It is true that
plaintiffs counsel sent a letter on November 12, 2012 to the
Assistant Director of the internal EEO office which noted
that plaintiffs claims were based in part on the June 30,
2012 suspension. Ex. 8 to Pl.'s Opp. [Dkt. # 21-8] But
the November 12, 2012 letter was sent 135 days after the
suspension took effect, which is far more than the 45 days
required by law.
the statutory time limits can be tolled in certain
circumstances, see Doak, 798 F.3d at 1104, the
burden is on plaintiff to show that tolling should apply.
Bowden, 106 F.3d at 437. Plaintiff has put forth no
evidence to prove that he unsuccessfully attempted to add the
three-day suspension to his initial complaint, and so he has
failed to create a genuine issue of material fact on that
point. So the Court could find that the June 30, 2012
suspension was not administratively exhausted. But, one goal
of administrative exhaustion is to give the agency an
opportunity to resolve the issue informally, see Loe v.
Heckler, 768 F.2d 409, 418 (D.C. Cir. 1985), and the
agency did in fact consider this issue before the lawsuit was
filed. Ex. 9 to Pl.'s Opp. [Dkt. # 21-9] at 3
(agency's acceptance of EEO complaint, recognizing the
three-day suspension). So the Court will consider it on the
regard to the seven-day suspension, plaintiff contends that
he contacted an EEO counselor within 45 days of learning of
the proposed suspension. Pl.'s Opp. at 12. While the
agency is correct that plaintiff did not contact an EEO
Counselor within 45 days of serving the actual suspension,
Def's Mem. at 9, plaintiff did contact an EEO Counselor
within 45 days of learning of the DAAP Panel's proposed
suspension. See Ex. 31 to Def's Mot. at 321-27
(proposal for a fourteen-day suspension dated October 17,
2012); Ex. 9 to Pl.'s Opp. (formal EEO complaint dated
November 29, 2012). So the Court will consider this
suspension on the merits as well.
Plaintiff may have exhausted the revocation of his security
claims that plaintiff never exhausted the temporary
revocation of his security clearance. Def's Mem. at 7.
Plaintiffs formal EEO complaint, dated November 29, 2012,
referenced, among other things, the following issues: the
three-day suspension, the circumstances surrounding the PIP,
and Andrews's selection as DAD of Analysis. Ex. 9 to
Def's Mot. Then, more than a year later, on December 10,
2013, plaintiffs attorney submitted a letter to the internal
EEO office alleging that plaintiff was "permanently
removed" from his position, and that he "still
doesn't have his SCI clearance." Ex. 8 to Pl.'s
Opp. But the letter is clear that those two issues are
distinct from plaintiffs original complaint:
My office is currently representing Mr. Theodore Duncan on an
EEO complaint, HS-ICE-22505-2012. That case is towards the
end of the investigation stage and my client does not wish to
combine that complaint with any other. Kindly consider this
letter notice of Mr. ...