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Macon v. United States Capitol Police Board

United States District Court, District of Columbia

June 29, 2017

DERRICK W. MACON, Plaintiff,
v.
UNITED STATES CAPITOL POLICE BOARD, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge.

         Plaintiff Derrick Macon, pro se, alleges that he suffered discrimination and retaliation in violation of the Congressional Accountability Act, 2 U.S.C. § 1301, et seq. (“CAA”). Pending before the Court is the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(1), or in the alternative, Federal Rule of Civil Procedure 12(b)(6). Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the motion will be GRANTED in PART and DENIED in PART.

         I. Background

         On March 19, 2012, Mr. Macon filed a Complaint in which he alleged that his employer, defendant United States Capitol Police Board, discriminated against him in violation of the CAA. Am. Compl., ECF No. 4. In Count I, Mr. Macon alleges that he was discriminated based on disability. See Id. at 7. In Count II, Mr. Macon alleges that he was subjected to a hostile work environment. See id. at 7-8. In Count III, Mr. Macon alleges that he was subjected to discrimination based on race. See id. at 8-9. In Count IV, Mr. Macon alleges that he was subjected to retaliation. See id. at 9-10. Mr. Macon alleges that he exhausted his administrative remedies by completing counseling and mediation with the Congressional Office of Compliance with regard to Office of Compliance Case No. 11-CP-50 and that on August 20, 2011, he received an End of Mediation Notice. See id. at 4-5. The original Complaint in this case was filed on November 21, 2011, and attached to the Complaint was the End of Mediation Notice for Case No. 11-CP-50. See Compl., ECF No. 1 at 5. This Notice does not contain information about the allegations that were the subject of the counseling and mediation in that case. See id.

         Mr. Macon is also a pro se plaintiff in three other cases before this Court -- Blackmon-Malloy, et al., v. United States Capitol Police Bd., Civil Action No. 01-2221[1]; Macon v. United States Capitol Police Bd., Civil Action No. 08-003; and Macon v. United States Capitol Police Bd., Civil Action No. 09-cv-592. On May 18, 2010, the Court declined to consolidate the instant case with the other cases listed above, but did order that all cases follow the same schedule to address the threshold subject matter jurisdiction issue in accordance with the decision of the Court of Appeals of the District of Columbia Circuit in Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, (D.C. Cir. 2009). Thereafter, in light of Mr. Macon's earlier notification to the Court that he did not oppose limited consolidation of the instant case with Civil Action No. 01-2221 “to address the threshold question of meeting the jurisdictional requirements as set forth in” the Court of Appeals decision, the Court informed the parties that it would defer ruling on the defendant's motion to dismiss in the instant case pending the Court's resolution of the motion to dismiss in Civil Action No. 01-2221. See Civil Action No. 09-592, Minute Order, Jan. 6, 2011. The parties later notified the Court that they consented to the Court proceeding to consider the defendant's motion to dismiss. See Civil Action No. 11-2067, Minute Order, May 15, 2015. As the Court had ruled on the motion to dismiss in Civil Action No. 01-2221, the Court considered the motion to dismiss in this case and determined that it should be held in abeyance pending Mr. Macon's response to the Court's Order to Show Cause. Mem. Op., ECF No. 16.

         The Court observed that Mr. Macon had failed to provide documentation to support his assertions that he went through the counseling and mediation process regarding the claims alleged in the Amended Complaint. Specifically, the documentation attached to Mr. Macon's original Complaint and his opposition to the defendant's motion to dismiss does not contain information regarding the allegations made in Office of Compliance Case No. 11-CP-50. As the Court is to construe a pro se complaint liberally, it issued an Order to show cause why the Amended Complaint should not be dismissed with prejudice for failure to demonstrate -- through relevant Office of Compliance documents similar to those Mr. Macon has provided in other cases before this Court -- that his claims in his Amended Complaint were actually presented in counseling and mediation. Mr. Macon timely responded to the Order to show cause and the defendant timely replied.

         II. Legal Standards - Federal Rule of Civil Procedure 12(b)(1)

         A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction.

         A federal district court may only hear a claim over which it has subject matter jurisdiction; therefore, a Rule 12(b)(1) motion for dismissal is a threshold challenge to a court's jurisdiction. Fed.R.Civ.P. 12(b)(1). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the Court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In evaluating the motion, the Court must accept all of the factual allegations in the complaint as true and give the plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). However, the Court is “not required . . . to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations.” Cartwright Int'l Van Lines, Inc. v. Doan, 525 F.Supp.2d 187, 193 (D.D.C. 2007) (quotation marks omitted). Finally, a “pro se complaint is entitled to liberal construction.” Washington v. Geren, 675 F.Supp.2d 26, 31 (D.D.C.2009) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).

         B. Administrative Exhaustion under the Congressional Accountability Act.

         The Congressional Accountability Act of 1995, 2 U.S.C. § 1301, et seq., “extend[s] the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch.” Blackmon-Malloy III, 575 F.3d at 701. Subchapter IV of the Act (Sections 1401-1416) governs the procedures for the administrative processing of any disputes under the Act. As relevant here, it sets forth “a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief.” Id. The employee must first engage in counseling regarding his particular complaint. Then, he must proceed to mediation. Upon completion of mediation, he may elect to file suit in federal court.

         In determining whether the employee “has completed counseling and mediation, ” 2 U.S.C. § 1408(a), as required to file a lawsuit, the Court is not empowered to examine what actually transpired in any counseling or mediation session or to determine the effectiveness of those sessions. Blackmon-Malloy, 575 F.3d at 711-12. Rather, “the reference in section 1408(a) to ‘completed counseling . . . and mediation' means no more than that[: (1)] the employee timely requested counseling and mediation, [(2)] that the employee did not thwart mediation by failing to give notice of his or her claim upon request, [(3)] that the mandated time periods have expired, and [(4)] that the employee received end of counseling and mediation notices from the Office.” Id. at 713.

         1. The Counseling Requirement

         The first step an employee must take is “counseling as provided in section 1402.” 2 U.S.C. § 1401(1). “‘[T]o commence a proceeding, ' the employee must request counseling within 180 days of the date of the alleged violation of a law made applicable by the [Congressional Accountability Act].” Blackmon-Malloy III, 575 F.3d at 702 (quoting 2 U.S.C. § 1402(a)). “As regards counseling, ‘[t]he Office shall provide the employee with all relevant information with respect to the rights of the employee.'” Id. (quoting 2 U.S.C. § 1402(a)). “The [Congressional Accountability Act] further provides that ‘[t]he period for counseling shall be 30 days unless the employee and the Office agree to reduce the period.'” Id. (quoting 2 U.S.C. § 1402(b)). The Court of Appeals for the District of Columbia Circuit has held that the counseling requirement does not encompass a requirement that the complaining employee be physically present for counseling, “[g]iven the limited purpose of counseling to provide the employee with information about his or her rights and the limited benefit that would inure to the employee or the Office from performing this function in person.” Id. at 708. Finally, “[t]he Office must ‘notify the employee in writing when the counseling period has ended.'” Id. (quoting 2 U.S.C. § 1402(c)).

         2. The Mediation Requirement

         The second step that an employee must take is “mediation as provided in section 1403.” 2 U.S.C. § 1401(2). “‘[N]ot later than 15 days after receipt . . . of notice of the end of the counseling period . . . but prior to and as a condition of making an election under section 1404, ” the employee must “file a request for mediation with the Office.'” Blackmon-Malloy III, 575 F.3d at 702 (quoting 2 U.S.C. § 1403(a)). “Mediation ‘may include the Office, the covered employee, the employing office, and one or more individuals appointed by the Executive Director' of the Office, but ‘shall involve meetings with the parties separately or jointly for the purpose of resolving the dispute between the covered employee and the employing office.'” Id. (quoting 2 U.S.C. § 1403(b)(1), (2)). “The mediation period ‘shall be 30 days, ' which may be extended upon joint request of the parties, and (as with counseling) the Office must ‘notify in writing the covered employee and the employing office when the mediation period has ended.'” Id. (quoting 2 U.S.C. § 1403(c)). Just as for counseling, mediation need not involve the complaining individual's physical presence. See Id. at 710.

         3. Election

         The third and final step is “election, as provided in section 1404 . . . of either . . . a formal complaint and hearing . . . subject to Board review . . . and judicial review in the United States Court of Appeals for the Federal Circuit . . . or . . . a civil action in a district court of the United States as provided in section 1408.” 2 U.S.C. § 1401(3); see also Blackmon-Malloy III, 575 F.3d at 702. If the civil-action route is chosen, the three-step procedure constitutes a jurisdictional requirement. The Congressional Accountability Act declares that “[t]he district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 . . . by a covered employee who has completed counseling under section 1402 . . . and mediation under section 1403 . . . . A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation.” 2 U.S.C. § 1408(a). This language, combined with its location in a section entitled “jurisdiction, ” led the Court of Appeals for the District of Columbia Circuit to hold that “it is apparent from the plain terms of the text that Congress intended counseling and mediation to be jurisdictional requirements.” Blackmon-Malloy, 575 F.3d at 705. Accordingly, district courts are “not empowered to apply the equitable doctrine of vicarious exhaustion to excuse compliance.” Id. at 706.

         III. ...


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