United States District Court, District of Columbia
RANDOLPH S. KOCH, Plaintiff,
MARY JO WHITE, et al., Defendants.
P. MEHTA UNITED STATES DISTRICT JUDGE.
a mixed case appeal of a Merit Systems Protection Board
decision arising from the termination of Plaintiff Randolph
S. Koch's employment with the U.S. Securities and
Exchange Commission. Plaintiff filed administrative
complaints alleging that, by failing to provide him a
reasonable accommodation for his disability and terminating
his employment, Defendant Mary Jo White, acting in her
official capacity as Chairwoman of the U.S. Securities and
Exchange Commission, discriminated against him based on his
disability, age, and religion and retaliated against him for
engaging in protected activity. The Board concluded that
Plaintiff's firing was not the result of discrimination
or retaliation but, rather, Plaintiff's own misconduct.
In the process of making that determination, the Board
declined Plaintiff's requests to dismiss the appeal
without prejudice or otherwise postpone proceedings in light
of Plaintiff's medical conditions. Plaintiff has appealed
on the grounds that (1) the Board's decision was
arbitrary and capricious, not in compliance with legal
procedures, unsupported by substantial evidence, or otherwise
not in accordance with law, and (2) Defendant's conduct
violated several federal antidiscrimination statutes.
before the court is Defendant's unopposed Motion for
Summary Judgment. Plaintiff, proceeding pro se, has not filed
an opposition to Defendant's motion, but has filed
several motions for extensions of time. After thorough
consideration of the record, the court grants Defendant's
Motion and denies Plaintiff's motions.
formerly employed by the U.S. Securities and Exchange
Commission (“SEC”), claims to suffer from several
medical conditions, including coronary artery disease,
hypertension, diabetes, a clotting disorder, gout, sleep
apnea, Delayed Sleep Phase Disorder, circadian rhythm
disorder, Attention Deficit Disorder, and arthritis in his
foot. See Third Am. Compl., ECF No. 64 [hereinafter
Third Am. Compl.], ¶¶ 11-17, 19-20, 83. Because of
these medical conditions, Plaintiff found it difficult to
come to work on time, or at all. See Id.
¶¶ 34-35, 65-67.
claims that he modified his schedule to ensure he met his
professional obligations and sought assistance from the SEC
to accommodate his needs. He asserts that he made up any time
he missed from work by working additional hours outside his
set schedule. See Id. ¶¶ 22, 39. At the
same time he was working late to make up lost hours,
Plaintiff claims, his colleagues were permitted to leave work
for extended lunch periods, go for coffee, or exercise during
work hours without repercussion. Id. ¶¶
36-38, 82. In general terms, Plaintiff also alleges that he
made multiple requests for schedule and workplace flexibility
accommodations in light of his medical disability, but those
requests largely were ignored or denied. See Id.
¶¶ 59, 61, 84; cf. Id. ¶¶ 59- 60
(indicating that Plaintiff received an accommodation in the
form of an adjustment of his arrival time, but he
subsequently deemed that accommodation insufficient). More
specifically, Plaintiff made at least two requests for a
part-time telework arrangement during the first half of
2009. He purportedly made one request in January
2009 and a second in June 2009. The SEC denied
Plaintiff's January 2009 request, see Id.
¶¶ 72, 77, and closed out Plaintiff's June 2009
request after Plaintiff failed to engage in the interactive
process, see Notice of Filing of Exs. Under Seal,
ECF No. 88 [hereinafter Notice of Exs.], Ex. G, ECF No. 88-6
[hereinafter Ex. G], at 27 (SEC Final Agency
unscheduled comings and goings from work did not go
unnoticed. On June 5, 2008, the SEC began an investigation
into allegations that Plaintiff was not adhering to his set
schedule. Def.'s Mot. for Summ. J., ECF No. 87
[hereinafter Def.'s Mot.], at 4-25 [hereinafter Stmt. of
Undisputed Material Facts], ¶ 2; Public Notice of Filing
Ex. A Under Seal, ECF No. 101, Ex. A Pt. 1, ECF No. 101-1
[hereinafter Ex. A. Pt. 1]. Nine months later, the SEC's
investigation concluded that Plaintiff “violated the
Standards of Conduct as well as [SEC] policy and rules with
his excessive, unauthorized absences from duty.” Ex. A.
Pt. 1 at 18. The SEC's investigation relied upon
electronic gate data (“turnstile data”) from
April 1 to November 5, 2008, which showed that Plaintiff
“regularly failed to follow [his] tour of duty and that
on multiple occasions [he] failed to work the number of hours
[he] reported as work hours on [his] official time
record.” Notice of Exs., Ex. B, ECF No. 88-1
[hereinafter Ex. B], at 1. Specifically, “there were 16
occasions (over 36 hours total) when [Plaintiff] failed to
work the number of hours [he] reported on [his] official time
record and 78 occasions when [he] failed to follow [his] tour
of duty.” Ex. B at 1. Additionally, between April 1 and
July 14, 2008, Plaintiff did “not once arrive to work
on time, ” and “arrived to work late and/or left
work early without taking approved leave, for a total of
112.67 hours.” Ex. A Pt. 1 at 3. Further, the SEC
concluded Plaintiff had submitted insufficient documentation
to justify his absence from work from March 2 to May 1, 2009.
Ex. B at 2. As a result of the investigation's findings,
the SEC issued a Notice of Proposed Removal from Federal
Service to Plaintiff on June 15, 2009. See Id. After
Plaintiff submitted oral and written replies to the Proposed
Removal, the SEC issued its Final Decision of Removal,
explaining that Plaintiff's employment would be
terminated, effective October 13, 2009, for falsely reporting
his work hours, being excessively absent without leave,
failing to adhere to his set hours of employment, and
inappropriately using official time. Stmt. of Undisputed
Material Facts ¶¶ 4-6; Notice of Exs., Ex. D, ECF
No. 88-3 [hereinafter Ex. D].
believing the SEC's reasons for firing him to be pretext
for discrimination and retaliation, filed two formal
administrative complaints with the SEC's Equal Employment
Opportunity Office (“EEO Office”). He alleged
that, by failing to provide a reasonable accommodation for
his disability in response to his June 2009 request and
terminating his employment, the SEC had discriminated against
him based on his age, religion, and disability and retaliated
against him for engaging in protected activity. Stmt. of
Undisputed Material Facts ¶¶ 7- 8; Notice of Exs.,
Ex. E, ECF No. 88-4 [hereinafter EEO Compl. 18-09-09]; Notice
of Exs., Ex. F, ECF No. 88-5 [hereinafter EEO Compl.
04-10-10]. The EEO Office consolidated Plaintiff's
filings into a single administrative complaint and opened an
investigation. Stmt. of Undisputed Material Facts
¶¶ 7-9. It read Plaintiff's EEO Complaints,
collectively, as raising three issues: (1) “[w]hether
the SEC discriminated against [Plaintiff] in retaliation for
prior EEO activity when it issued him a proposed removal
dated June 15, 2009”; (2) “[w]hether the SEC
discriminated against [Plaintiff] by denying him a reasonable
accommodation for his disability (physical) on or about June
17, 2009”; and (3) “[w]hether the SEC
discriminated against [Plaintiff] based on his age (DOB
5/17/74), disability (physical), religion (Jewish) and/or in
retaliation for prior EEO activity when it terminated his
employment with the SEC on or about October 6, 2009.”
See Ex. G at 5-6. After conducting an investigation
as to each claim, the EEO Office determined Plaintiff had
failed to establish the SEC discriminated or retaliated
against him. See Id. at 26-28.
appealed the EEO Office's decision to the Merit Systems
Protection Board (“MSPB” or “the
Board”). The parties agreed to suspend the appeal's
progress for 30 days to allow for additional time to conduct
discovery. Stmt. of Undisputed Material Facts ¶ 17.
After the case resumed, Plaintiff twice moved to dismiss the
appeal without prejudice in light of his medical conditions,
but the Administrative Law Judge (“ALJ”) assigned
to the case denied both requests. Id. ¶¶
21, 23; Notice of Exs., Ex. K, ECF No. 88-10 [hereinafter Ex.
K], at 1; Notice of Exs., Ex. J, ECF No. 88-9 [hereinafter
Ex. J], at 17-18. With respect to these requests, the ALJ
explained that Plaintiff had had sufficient time to conduct
discovery while the case was suspended and had not supplied
any reason why he would be unable to participate in the
appeal, as scheduled. See Ex. K at 1; Ex. J at 18.
Plaintiff subsequently restyled his request for a dismissal
without prejudice as a “reasonable accommodation”
of his disabilities, claiming that the accommodation was
warranted “so that he may participate in discovery as
well as the adjudication of his appeal.” Stmt. of
Undisputed Material Facts ¶ 24; Ex. J at 18. The ALJ
denied this request, too, leading Plaintiff to file a
complaint that he had been discriminated against in the
adjudication of a case before the MSPB. Stmt. of Undisputed
Material Facts ¶¶ 25, 28; Ex. J at 18-19.
Initial Decision, the ALJ concluded that all Plaintiff's
claims were without merit. First, the ALJ determined that the
SEC properly relied upon the turnstile data in deciding to
remove Plaintiff from his position and that evidence
supported each charge against Plaintiff. Ex. J at 3-9; Stmt.
of Undisputed Material Facts ¶¶ 47, 56, 60, 64-65.
Second, the ALJ concluded that there was no evidence that the
SEC retaliated against him or discriminated against Plaintiff
based on his disability. Ex. J at 10-12, 15-17; Stmt. of
Undisputed Material Facts ¶¶ 66-68. The ALJ did not
make any findings of fact or conclusions of law concerning
Plaintiff's age- or religion-based discrimination claim.
Third, with respect to the allegation of discrimination in
the adjudication of a board case, the ALJ ruled that, in the
absence of any medical evidence demonstrating that
Plaintiff's medical conditions would improve by the date
he requested to automatically refile his appeal, Plaintiff
had not satisfied the “good cause” standard that
would entitle him to modification of the appeals process.
See Ex. J at 19-21; Stmt. of Undisputed Material
Facts ¶¶ 29, 33-38; 5 C.F.R. § 1207.170(b)(3)
(giving the ALJ to whom the case is assigned authority to
“decide the merits of any timely allegation that is
raised at this stage of adjudication, and . . . [to] make
findings and conclusions regarding the allegation either in
an interim order or in the initial decision, recommended
decision, or recommendation”).
continued to pursue his administrative remedies. He appealed
the ALJ's decision to the full Board, but the Board
concluded that the evidence supported the ALJ's
conclusions as to the SEC's justification for
Plaintiff's removal, and the ALJ had not abused her
discretion with respect to Plaintiff's requests to
dismiss the appeal without prejudice. Stmt. of Undisputed
Material Facts ¶¶ 69-70, 76-77, 89; Def.'s
Mot., Ex. M, ECF No. 87-1 [hereinafter Ex. M]. Accordingly,
Plaintiff's petition for review was denied. Lastly,
Plaintiff appealed the ALJ's Initial Decision and the
full Board's denial of his petition to the EEOC's
Office of Federal Operations (“OFO”). The OFO
concluded that, on the record presented, Plaintiff had failed
to show his removal was the result of retaliation or
discrimination based on his age, religion, or disability.
Stmt. of Undisputed Material Facts ¶¶ 92-97;
Koch v. Schapiro, Pet. No. 0320120014, 2012 WL
5426901, at *2-3 (E.E.O.C. Oct. 26, 2012). Plaintiff
subsequently filed suit in federal court. See
Compl., ECF No. 1.
wind-up to adjudication in this court has been drawn out by
the filing of multiple pleadings and the granting of many
motions for extensions of time. Plaintiff has filed four
complaints over the course of more than three years. See
Id. (filed Nov. 29, 2012); Am. Compl., ECF No. 22 (filed
June 13, 2014); Second Am. Compl., ECF No. 61 (originally
filed Feb. 3, 2015; corrected Dec. 21, 2015); Third Am.
Compl. (filed Jan. 4, 2016). Of relevance here, the court
granted in part and denied in part Defendant's Motion to
Strike Plaintiff's Second Amended Complaint, allowing
Plaintiff's lawsuit to proceed on two of his four claims,
as pleaded. See Mem. Op. & Order, ECF No. 49, at
16. The court subsequently permitted Plaintiff to file a
Third Amended Complaint, which now is the operative pleading
in this matter. See Minute Order, Feb. 9, 2016.
Defendant then filed a Motion for Summary Judgment.
See Def.'s Mot.
court reaches Defendant's Motion after providing
Plaintiff ample opportunity to respond. Defendant filed her
Motion on November 21, 2016. See Id. Plaintiff's
Opposition was originally due on December 9, 2017.
See Order, ECF No. 90. Plaintiff sought an extension
to January 9, 2017, to file his Opposition, which the court
granted. See Pl.'s Mot. for Extension of Time,
ECF No. 91 [hereinafter Pl.'s Mot. for Ext., ECF No. 91];
Minute Order, Dec. 12, 2016. Plaintiff then sought a second
extension of time to February 6, 2017, to file his
Opposition, which the court granted with the warning that no
further extensions would be granted absent exceptional
circumstances. See Pl.'s Mot. for Extension of
Time, ECF No. 92 [hereinafter Pl.'s Mot. for Ext., ECF
No. 92]; Minute Order, Jan. 11, 2017. That twice-extended
deadline came and went. Plaintiff filed five additional
motions between February 7 and April 21, 2017, seeking to
justify further delay of this litigation. See
Pl.'s Mot. for Extension of Time to File Opp'n &
Cross-Mot., ECF No. 93 [hereinafter Pl.'s Mot. for Ext.,
ECF No. 93]; Pl.'s Mot. for Order to Treat Pl.'s Mot.
for Extension of Time to File Opp'n & Cross-Mot. as
Timely Filed, ECF No. 94 [hereinafter Pl.'s First Mot.
for Timeliness, ECF No. 94]; Pl.'s Mot. for Leave to File
Late-Filed Mot., ECF No. 95 [hereinafter Pl.'s Second
Mot. for Timeliness, ECF No. 95]; Pl.'s Sealed Mot. for
Leave to File, ECF No. 96, Pl.'s Mot. for Extension of
Time to Mar. 31, 2017 to File Pl.'s Opp'n, ECF No.
96-1 [hereinafter Pl.'s Mot. for Ext., ECF No. 96-1];
Pl.'s Mot. for Extension of Time to File Resp. to
Def.'s Dispositive Mot. & to File Any Cross-Mot., ECF
No. 97 [hereinafter Pl.'s Mot. for Ext., ECF No.
Defendant filed an Opposition to those motions in which
Plaintiff sought an extension of time to file his Opposition.
See Def.'s Opp'n to Pl.'s Mots. for
Extension of Time, ECF No. 100 [hereinafter Def.'s
Opp'n]. To date, Plaintiff has not filed his Opposition
to Defendant's Motion for Summary Judgment.
District Court Review of Mixed Cases Before the MSPB
cases are those involving both an agency action reviewable by
the MSPB (e.g., removal) and allegations that the action was
motivated by discrimination prohibited by federal statute, as
outlined in the Civil Service Reform Act. See 5
U.S.C. §§ 7702, 7703(b)(2), (c). Federal employees
who bring mixed cases must fully exhaust the administrative
remedies available to them for both parts of their case,
including those affiliated with the federal
antidiscrimination statutes and Civil Service Reform Act.
See Evans v. U.S. Patent & Trademark Office, No.
16-1932, 2017 WL 829101, at *1 (D.D.C.), appeal
docketed, No. 17-5062 (D.C. Cir. Apr. 5, 2017). Fully
appealing both claims to the MSPB constitutes exhaustion.
See White v. Tapella, 876 F.Supp.2d 58, 65 (D.D.C.
2012). The original decision of the ALJ is the final decision
the district court reviews, unless the full Board has granted
a subsequent petition for review. See Id. If the
full Board grants the petition, then the full Board's
conclusions become the final decisio n the district court
court applies two standards of review in mixed cases.
Greenhouse v. Geren, 574 F.Supp.2d 57, 66 (D.D.C.
2008). With respect to the MSPB's decision, the court
considers only whether the decision was “arbitrary or
capricious, obtained without compliance with lawful
procedures, unsupported by substantial evidence[, ] or
otherwise not in accordance with law.” Barnes v.
Small, 840 F.2d 972, 979 (D.C. Cir. 1988). In contrast,
the court reviews the plaintiff's federal discrimination
and retaliation claims de novo. Id.
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). A “genuine dispute” of a
“material fact” exists when the fact is
“capable of affecting the substantive outcome of the
litigation” and “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Elzeneiny v. District of Columbia, 125
F.Supp.3d 18, 28 (D.D.C. 2015).
assessing a motion for summary judgment, the court looks at
the facts in the light most favorable to the nonmoving party
and draws all justifiable inferences in that party's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). To defeat a motion for summary judgment, the
nonmoving party must put forward “more than mere
unsupported allegations or denials”; its opposition
must be “supported by affidavits, declarations, or
other competent evidence, setting forth specific facts
showing that there is a genuine issue for trial” and
that a reasonable jury could find in its favor.
Elzeneiny, 125 F.Supp.3d at 28 (citing Fed.R.Civ.P.
56(e)); Celotex Corp. v. Catrett, 477 U.S. 317, 324
court may not treat a plaintiff's failure to respond to a
defendant's motion for summary judgment as a concession
of the motion. Winston & Strawn, LLP v. McLean,
843 F.3d 503, 508 (D.C. Cir. 2016); Fed.R.Civ.P. 56(e)
advisory committee's 2010 note. Rather, “the
[d]istrict [c]ourt must always determine for itself whether
the record and any undisputed material facts justify granting
summary judgment.” Winston & Strawn, LLP,
843 F.3d at 505 (internal quotation marks omitted). The court
may, however, treat any unaddressed factual statement in the
defendant's motion as undisputed. See Id. at
507; LCvR 7(h)(1) (“In determining a motion for summary
judgment, the Court may assume that facts identified by the
moving party in its statement of material facts are admitted,
unless such a fact is controverted in the statement of
genuine issues filed in opposition to the motion.”).
preliminary matter, the court notes that the MSPB decision
subject to this court's review is the original decision
of the ALJ because the full Board denied Plaintiff's
petition for review. See Ex. M at 8 (decision of the
full Board denying petition for review). The ALJ's
decision, however, did not address all the claims raised in
Plaintiff's EEO Complaints or passed on by the SEC's
Final Agency Decision. Additionally, Plaintiff has not
appealed all aspects of the ALJ's decision. Accordingly,
the court begins by parsing which claims are properly before
Third Amended Complaint plainly challenges the ALJ's
conclusions regarding the use of turnstile data to support
termination of Plaintiff's employment and the sufficiency
of the evidence supporting Plaintiff's firing, as well as
the ALJ's determinations regarding postponement or
dismissal without prejudice of Plaintiff's appeal. Those
issues are properly before the court. To the extent Plaintiff
seeks to claim the ALJ discriminated and retaliated against
him, see Third Am. Compl. ¶¶ 98, 114-15,
however, this court will not review those allegations.
Plaintiff raised and fully adjudicated those exact claims
before the District Court for the District of Maryland nearly
four years ago, and he cannot seek review or ...