United States District Court, District of Columbia
DEAN S. SENECA, Plaintiff,
THOMAS E. PRICE, M.D., Secretary, Department of Health and Human Services, Defendant.
RANDOLPH D. MOSS United States District Judge
Dean S. Seneca is a health scientist at the Center for
Disease Control and Prevention (“CDC”), a
component agency of the Department of Health and Human
Services (“HHS”). Seneca contends that the CDC
discriminated and retaliated against him in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. He does not, however, assert a Title
VII claim in this action. Rather, invoking the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701 et
seq., Seneca alleges that HHS-and, although not named as
a defendant, the Equal Employment Opportunity Commission
(“EEOC”)-acted in an arbitrary and capricious
manner when the EEOC administrative law judge
(“ALJ”) assigned to adjudicate his case declined
to compel two allegedly “essential” witnesses to
appear for questioning by an EEO investigator and failed to
consider the testimony of those same witnesses before
rendering his decision; when HHS adopted the ALJ's
decision on the merits; and when the EEOC's Office of
Federal Operations affirmed the ALJ's decision. Dkt. 1.
In short, Seneca challenges the EEO administrative process
under the APA, as opposed to asserting a claim against HHS
under Title VII or any other antidiscrimination law.
moves to dismiss Seneca's complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim.
See Dkt. 9. HHS argues that, because Seneca has an
adequate remedy at law-a private right of action under Title
VII-he cannot invoke the APA to challenge the investigation
and adjudication of his administrative EEO complaint.
Id. at 8-10. As explained below, the Court agrees
and will, accordingly, grant HHS's motion to dismiss.
purposes of the pending motion to dismiss, the Court accepts
the allegations in Seneca's complaint and incorporated
materials as true. See Am. Nat'l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011); see also
Nichols v. Vilsack, No. 13-01502, 2015 WL 9581799, at *1
(D.D.C. Dec. 30, 2015) (explaining that in
“adjudicating a motion to dismiss for failure to state
a claim, a court may consider, along with the facts alleged
in the complaint, ‘any documents either attached to or
incorporated in the complaint and matters' subject to
‘judicial notice'”) (quoting EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.
September 19, 2012, Seneca, an employee at the CDC's
Office of State, Tribal, Local and Territorial Support, filed
an administrative EEO complaint with HHS, alleging that the
CDC “discriminated against him on the bases of his race
(Seneca Indian), national origin (Seneca Indian), religions
(Catholic/Long House), color (medium Brown), and reprisal for
prior protected activity.” Dkt. 1 at 4 (Compl.
¶10); see also Dkt. 1-2 at 2. Seneca asserted,
among other things, that the CDC “created a written
policy . . . that specifically targeted [him] by excluding
him from certain program activities/assignments related to
American Indian tribal activity;” that CDC used the
policy “to intimidate, harass, and interfere with [his]
pursuit of pending EEO matters;” that he was
“denied the opportunity to conduct a program review . .
. of one of his grantees” because “of his
race;” and that he “was subjected to disparate
treatment when he was denied the opportunity to attend”
a meeting. Dkt. 1-2 at 2. Seneca, “through his
attorney, ” twice amended his complaint to include
additional allegations. Id. at 2-3.
performing an investigation into Seneca's claims, HHS
produced a Report of Investigation (“ROI”),
id. at 3, and, upon receipt of the ROI, Seneca
timely requested a hearing before an EEOC ALJ, Dkt. 1-5 at 9.
In addition, Seneca filed a motion for sanctions, alleging
that, in the course of conducting its investigation, HHS
failed to make two “critical” witnesses available
for interview and that those witnesses would have provided
“pertinent” testimony as to “many of the
key aspects of his asserted claims of unlawful . . .
discrimination.” Dkt. 1-6 at 5- 11. The ALJ denied that
motion, explaining that Seneca could “submit his
witness list to the [ALJ] for approval” and that,
“[i]f the witnesses [were] determined to be relevant,
the [ALJ] c[ould] . . . direct [HHS] to make the witnesses
available for a hearing on the merits of [Seneca's]
allegations of discrimination.” Dkt. 1-8 at 1. Shortly
thereafter, HHS filed a motion requesting a decision from the
ALJ on Seneca's complaint without a hearing. Dkt. 1-5 at
9. Over Seneca's objection, the ALJ granted that motion
on July 16, 2014, and, at the same time, issued a decision on
Seneca's Title VII claims on the merits. Dkt. 1-3 at 16.
The ALJ did not seek or consider the testimony of the two
witnesses. He explained: Because “there [wa]s no
genuine dispute” with “respect to a material
fact” or any “issue of credibility, ” there
was no need to hold “a hearing on the merits of
[Seneca's] allegations of discrimination.” Dkt. 1-3
at 16. On the merits, the ALJ concluded that Seneca
“failed to prove that [HHS] subjected him to
discrimination as alleged.” Dkt. 1-2 at 3. HHS, in
turn, “adopt[ed] and fully implement[ed]” the
ALJ's ruling as its final decision. Dkt. 1-4 at 1-3.
September 19, 2014, Seneca appealed HHS's adoption of the
ALJ's decision to the EEOC's Office of Federal
Operations, arguing that the ALJ “erred in issuing a
decision without a hearing” because “two
management witnesses [who] could have proved his prima facie
case were not interviewed, ” resulting in a
“record [that] was not complete.” Dkt. 1-2 at 1,
6-7. In a decision issued more than two years later, the EEOC
disagreed, concluding that Seneca had “not
demonstrate[d] that the evidence that [the witnesses] would
have provided would have established his prima facie case,
” and, even assuming that Seneca had proven his prima
facie case, the EEOC determined that Seneca had not
“present[ed] any evidence” showing that HHS's
“articulated legitimate, nondiscriminatory
reasons” for its actions “were pretext for
discrimination.” Id. at 4-5.
then filed suit in this Court, alleging that the ALJ, HHS,
and the EEOC's Office of Federal Operations acted
arbitrarily and capriciously by failing to solicit or to
consider the testimony of the two “critical”
witnesses he identified in the course of the EEO
investigation and administrative proceeding. See,
e.g., Dkt. 1 at 5 (Compl. ¶ 17); id. at
6-10 (Compl. ¶¶ 19-31) (challenging the ALJ's
decision to issue a decision without holding a hearing);
id. at 10-11 (Compl. ¶¶ 32-37)
(challenging HHS's adoption of the ALJ's decision);
id. at 12-13 (Compl. ¶¶ 38-43)
(challenging the EEOC's affirmance of HHS's adoption
of the ALJ's decision).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is designed to “test the legal sufficiency
of a complaint.” Browning v. Clinton, 292 F.3d
235, 242 (D.C. Cir. 2002). In evaluating such a motion, the
Court “must first ‘tak[e] note of the elements a
plaintiff must plead to state [the] claim' to relief, and
then determine whether the plaintiff has pleaded those
elements with adequate factual support to ‘state a
claim to relief that is plausible on its face.'”
Blue v. District of Columbia, 811 F.3d 14, 20 (D.C.
Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
675, 678 (2009)) (alterations in original) (internal citation
omitted). Although “detailed factual allegations”
are not necessary to withstand a Rule 12(b)(6) motion,
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), “a complaint must contain sufficient factual
matter, [if] accepted as true, to ‘state a claim to
relief that is plausible on its face, '”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570).
agency action” is only “subject to judicial
review” under the APA if “there is no other
adequate remedy in a court.” 5 U.S.C. § 704. The
question raised by HHS's motion to dismiss is whether
Title VII's provision permitting individuals to bring
“civil action[s]” after receiving “notice
of final action taken by . . . the [EEOC] upon an
appeal” constitutes an “adequate remedy”
within the meaning of § 704. 42 U.S.C. §
2000e-16(c). The Court agrees with HHS that it does.
Title VII, an aggrieved federal employee like Seneca has the
right to de novo review in a federal district court
if he is dissatisfied with the outcome of the administrative
EEO proceeding. See Chandler v. Roudebush, 425 U.S.
840, 846 (1976) (“[F]ederal employees are entitled to a
trial de novo of their employment discrimination
claims.”); see also Wright v. Dominguez, No.
04-5055, 2004 WL 1636961, at *1 (D.C. Cir. July 21, 2004)
(“Federal employees . . . are not bound by the outcome
of the EEOC's administrative process but are entitled to
de novo review in district court regardless of that
outcome.”). The availability of that de novo
review, the D.C. Circuit has explained, “provides [an
employment discrimination litigant] an adequate remedy in a
court within the meaning of 5 U.S.C. § 704 for
complaints about the EEOC's administrative process”
and “preclud[es] an APA challenge to the EEOC's
procedures.”Wright, 2004 WL 1636961, at *1;
see Id. (“[T]he district court properly
concluded that [the plaintiff's discrimination] claims
were not reviewable under the Administrative Procedure
Act.”); see also Garcia v. Vilsack, 563 F.3d
519, 522-23 (D.C. Cir. 2009) (explaining that relief is not
available under the APA “‘where a statute affords
an opportunity for de novo district-court
review' of the agency action”) (quoting El Rio
Santa Cruz Neighborhood Health Ctr. v. U.S. Dep't of
Health & Human Servs., 396 F.3d 1265, 1270 (D.C.
Cir. 2005)); McCall v. Young, 179 F.Supp.3d 92, 96
(D.D.C. 2016) (explaining that the “D.C. Circuit's
decision in Wright . . . emphasizes that an adequate
remedy in court exists with respect to procedural
challenges against the EEOC because a complainant may ...