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Houser v. Shulkin

United States District Court, District of Columbia

August 28, 2017

MARSHA HOUSER, Plaintiff,
v.
DAVID J. SHULKIN,[1] Secretary, Department of Veteran Affairs Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge.

         Marsha Houser, a former employee of the United States Department of Veteran Affairs, brought suit against her former employer alleging discrimination on the basis of race in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and discrimination on the basis of disability and retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 794.[2] Defendant David J. Shulkin, the Secretary of the Department of Veteran Affairs, moved for dismissal or, in the alternative, for summary judgment. Because Houser failed to properly exhaust her administrative remedies, the Court grants Defendant's motion.

         I. Background

         Marsha Houser is an African-American woman who formerly worked in the Department of Veteran Affairs. Compl. ¶ 4. Following nine years of service in the United States Army, she was diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder. Compl. ¶¶ 6-7. On February 11, 2014, Houser submitted a request for an accommodation due to her disability. Compl. ¶ 14; Def's. Mot. Dismiss, or Alternatively, for Summ. J. Ex. A (“Demarins Decl.”), Ex. 1, at 88. She followed up with a second request for an accommodation on April 4, 2014. Compl. ¶ 17; Demarins Decl. Ex. 1, at 29, 61-64. The agency promptly responded with an email asking for further documentation regarding which “aspects of [Houser's] job requires [her] to have accommodation.” Demarins Decl. Ex. 5, at 44. Houser submitted a third request for an accommodation on October 30, 2014. Compl. ¶ 24; Demarins Decl. Ex. 1, at 29, 33-34. Less than a month later, on November 21, 2014, Houser met with an Equal Employment Opportunity (“EEO”) Counselor at the Department, alleging that she was discriminated against because of her disability. Def.'s Mot. Dismiss, or Alternatively, for Summ. J. Ex. B (“Johnson Decl.”) ¶ 2 & Ex. 1, at 1. This informal counseling process proved unsuccessful and on February 11, 2015, Houser received a letter notifying her of the opportunity to file a complaint related to her allegations. Johnson Decl. ¶ 4 & Ex. 2, at 1. Ultimately, her EEO case was closed on March 10, 2015, with the reason listed as “[w]ithdrawal (no formal complaint filed).” Johnson Decl. Ex. 4.

         On December 1, 2014, Houser was terminated from employment at the Department. Demarins Decl. ¶ 2. She filed an appeal of this adverse personnel action to the Merit Systems Protection Board (“MSPB”) the next day. Demarins Decl. ¶ 3 & Ex. 1, at 2-4. After being permitted to withdraw her complaint due to family medical issues, Houser re-filed with the MSPB on October 1, 2015. Demarins Decl. ¶¶ 4, 7; id. Ex. 2, at 2 (MSPB order); id. Ex. 4, at 2 (MSPB complaint). In her proceeding before the MSPB, Houser raised affirmative defenses of discrimination on the basis of disability and retaliation for whistleblowing activities. Demarins Decl. Ex. 10, at 1. The MSPB ordered Houser to present evidence on her affirmative defenses and to respond to the Department's associated discovery requests. Id.; id. at 7 (MSPB order of April 18, 2016). When she failed to do so, the MSPB barred her from raising these claims or introducing evidence on them at her hearing. Demarins Decl. Ex. 11, at 2-3 (MSPB order of May 12, 2016). The MSPB ultimately upheld Houser's removal on May 31, 2016. Demarins Decl. Ex. 12, at 1 (MSPB order). Houser then appealed this decision to the Equal Employment Opportunity Commission (“EEOC”), which denied her appeal on the basis that the MSPB had not addressed any matters within the EEOC's jurisdiction. Demarins Decl. Ex. 13, at 1 (EEOC order of July 8, 2016).

         While her MSPB case was pending, Houser again contacted an EEO Counselor on March 2, 2016, once more raising her allegation of discrimination on the basis of disability and retaliation in the form of the Department's failure to accommodate and its termination of Houser in December 2014. Johnson Decl. ¶ 12 & Ex. 8, at 2. Houser received her notice of the right to file a complaint on April 26, 2016, and she filed a formal complaint with the agency on May 1. Johnson Decl. ¶¶ 15-16; id. Ex. 9, at 1 (right to file letter); id. Ex. 10, at 1 (complaint). This compliant was dismissed by the agency as untimely since Houser had raised the same allegations in 2014 yet did not file a timely formal complaint at that time. Johnson Decl. ¶ 17 & Ex. 11.

         On August 18, 2016, Houser filed the present suit against the Department in this Court. She raised three claims: discrimination on the basis of race, discrimination on the basis of disability, and retaliation for engaging in activities protected by the Rehabilitation Act. Compl 5.

         II. Standard of Review

         The Department has filed a motion to dismiss under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56. Where, as here, “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d); see also Center for Auto Safety v. Nat'l Highway Transp. Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006). Such treatment is appropriate if the parties are “given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(c). Houser has been accorded a reasonable opportunity to respond and present evidence given that the Department styled its motion as one for summary judgment in the alternative and presented all materials relied on herein as declarations and exhibits to that motion. See, e.g., Center for Auto Safety, 452 F.3d at 805. The Court will therefore treat the Department's motion as one for summary judgment.

         Summary judgment is appropriately granted when “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). When deciding a motion for summary judgment, the Court must “‘examine the facts in the record and all reasonable inferences derived therefrom in a light most favorable to' the nonmoving party.” Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation omitted).

         III. Analysis

         Federal law protects federal employees from discrimination on the basis of their race or disability in employment. See 29 U.S.C. § 794 (disability); 42 U.S.C. § 2000e-2 (race). If a federal employee wishes to bring suit against her employer alleging a violation of her rights, she must first “navigate a maze of administrative processes[.]” Niskey v. Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017). These procedures are the same for claims under both Title VII and the Rehabilitation Act. 29 C.F.R. § 1614.103(a).

         First, an aggrieved party must consult with the federal agency's Equal Employment Opportunity (“EEO”) Counselor within 45 days of the allegedly discriminatory incident. 29 C.F.R. § 1614.105(a). At this initial session, the EEO Counselor informs the employee of her rights and responsibilities. Id. § 1614.105(b)(1). If the informal counseling process proves unsuccessful, the EEO Counselor must inform the employee of her right to file a complaint. Id. § 1614.105(d). The employee must file her formal complaint with the agency within 15 days of receiving such notice. Id. § 1614.106(b). The agency then has 180 days to complete its investigation of the complaint. Id. § 1614.108(e). Upon receiving a final agency decision, the employee may either appeal to the EEOC within 30 days or go straight into federal court within 90 days. Id. §§ 1614.402(a), 1614.407(a).

         This case, however, presents an additional wrinkle: Houser's case involves a “mixed case, ” where “the asserted claim (or claims) both arises under a federal employment discrimination law (such as Title VII) and also relates to or stems from an action that is within the jurisdiction of the Merit Systems Protection Board, ” such as Houser's dismissal. Niskey, 859 F.3d at 6. In such a case, the employee has the option of “forgo[ing] the internal agency exhaustion process and tak[ing] [her] claim directly ...


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