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Duncan v. Johnson

United States District Court, District of Columbia

September 30, 2016

THEODORE DUNCAN, Plaintiff,
v.
JEH CHARLES JOHNSON, Secretary, U.S. Department of Homeland Security, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON United States District Judge

         Plaintiff 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.").[1] 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 the merits.

         Plaintiff 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 discrimination counts.

         Plaintiff 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.

         FACTUAL BACKGROUND

         The 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.

         Plaintiffs Assignment to Work Under the DAD of Analysis

         In July 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).[2] 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, 30.[3]

         Meanwhile, 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.

         Because 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.

         The April 2012 Letter of Counseling and Mid-Cycle Performance Appraisal

         Plaintiff 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 ¶¶ 45-46.

         On the 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

         On May 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; Pl.'sSOF¶64.[4]

         Plaintiffs Suspensions

         The agency's procedures for suspending employees.

         In 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.

         The June 2012 three day suspension

         On 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.[5]

         Andrews reported the incident to ELR, and ELR submitted the matter to a review panel. Def's SOF ¶¶ 82-83; Pl.'s SOF ¶¶ 82-83.[6] 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.

         The January 2013 seven day suspension

         A few 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[7] (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.

         Plaintiffs security clearance

         In December 2012, Andrews suspected that plaintiff had improperly distributed information about a confidential informant, Def's SOF ¶ 101[8], 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.

         Plaintiffs reassignment

         On 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.[9] 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.

         On 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.

         PROCEDURAL HISTORY

         Plaintiffs EEO Complaints

         Plaintiff 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 retaliatory actions:

• 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. Id.

         Plaintiff 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.

         District court proceedings

         Plaintiff 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.

         On 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 Reply").

         STANDARD OF REVIEW

         Summary 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).

         The 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).

         ANALYSIS

         Plaintiff 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.

         There 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 summary judgment.

         I. Plaintiffs age and gender discrimination claims in Counts I and II fail.

         A. The exhaustion issue

         Defendant first moves for summary judgment on Counts I and II on the grounds that four of the seven[10] 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.

         Both 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).

         "These 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.

         1. Plaintiffs claim with regard to his 2011 reassignment to the Unit Chief position was not administratively exhausted.

         Plaintiff 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.

         Plaintiff 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.

         But 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.

         2. The suspension claims are not barred by the exhaustion requirement.

         Defendant 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.

         Plaintiff 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.

         While 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 merits here.

         With 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.

         3. Plaintiff may have exhausted the revocation of his security clearance.

         Defendant 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. ...

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