United States District Court, District of Columbia
E. BOASBERG United States District Judge.
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. 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.
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.
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).
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.
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.
Standard of Review
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.
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).
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.
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).
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 ...