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Koch v. White

United States District Court, District of Columbia

May 2, 2017

RANDOLPH S. KOCH, Plaintiff,
MARY JO WHITE, et al., Defendants.



         This is 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.

         Now 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.[1] After thorough consideration of the record, the court grants Defendant's Motion and denies Plaintiff's motions.

         I. BACKGROUND

         Plaintiff, 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.

         Plaintiff 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.[2] 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 Decision).[3]

         Plaintiff's 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].

         Plaintiff, 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.

         Plaintiff 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.

         In her 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”).

         Plaintiff 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.

         The 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.

         The 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. 97].[4] 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.


         A. District Court Review of Mixed Cases Before the MSPB

         Mixed 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.[5] 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 reviews. Id.

         The 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.

         B. Summary Judgment

         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). 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).

         In 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 (1986)).

         The 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.”).


         As a 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 it.

         Plaintiff's 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. ΒΆΒΆ 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 ...

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