United States District Court, District of Columbia
TIMOTHY J. KELLY JUDGE
the Court is Defendant's Motion to Dismiss. ECF No. 6
(“Mot.”). For the reasons stated therein, the
Motion is granted as conceded. Plaintiff's complaint (ECF
No. 1), and the case, are dismissed without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
17, 2017, Plaintiff Alexander Chan, proceeding pro
se, filed suit in this Court against his former
employer, the Federal Communications Commission
(“FCC”). ECF No. 1 (“Compl.”). Chan,
who is partially disabled and Asian American, voluntarily
retired from his position at the FCC in 2010. Compl. at 1-2;
Mot. at 1. In his short complaint, he appears to claim that,
while employed with the FCC, he was passed over for a
promotion due to his disability and race. Compl. at 1-2. The
complaint does not allege exactly when this purported
discrimination occurred. See Compl.; Mot. at 5 &
Ex. A. It also does not explicitly set forth Chan's
causes of action. See Compl. The FCC has,
reasonably, interpreted his complaint as bringing claims
under the Rehabilitation Act, 29 U.S.C. § 701 et
seq., and Title VII of the Civil Rights Act
(“Title VII”), 42 U.S.C. § 2000e et
seq. Mot. at 1, 5 & n.2. Notably, in his complaint,
Chan does not allege that he exhausted his administrative
remedies, a prerequisite to filing such claims under Title
VII or the Rehabilitation Act, before filing this lawsuit.
September 20, 2017, the FCC moved to dismiss the complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) for failure to exhaust administrative remedies. Mot.
at 1. Specifically, the FCC explained that in January 2017,
more than six years after he left the agency, Chan filed an
informal complaint with its Equal Employment Opportunity
(“EEO”) office, the Office of Workplace Diversity
(“OWD”). Id. at 2. He subsequently met
with an EEO counselor who, at the conclusion of counseling,
informed Chan of his right to file a formal complaint with
the OWD. Id. at 2 & Ex. F. But Chan did not do
so, and the OWD closed its investigation. Mot. at 2.
October 30, 2017, the Court issued an order instructing Chan
to respond to the Motion by November 30, 2017, and noted that
“[i]f Plaintiff fails to file a timely response to
Defendant's Motion, the Court may treat it as conceded
and, if circumstances warrant, render a judgment in favor of
Defendant.” ECF No. 7 at 2. Because the record was not
clear as to whether Chan timely received that order, the
Court issued a similar order on January 30, 2018 instructing
Plaintiff to respond by February 28, 2018. ECF No. 8. As of
the date of this opinion, Chan has not responded to either
Local Rule 7(b), if a party does not respond to a motion to
dismiss within the prescribed time, “the Court may
treat the motion as conceded.” The D.C. Circuit has
permitted this practice. See Cohen v. Bd. of Trs. of the
Univ. of D.C., 819 F.3d 476, 480 (D.C. Cir. 2016);
Jackson v. Todman, 516 F. App'x 3 (D.C. Cir.
2013); Fox v. Am. Airlines, Inc., 389 F.3d 1291,
1293-94 (D.C. Cir. 2004) (affirming district court's
“straightforward” application of Local Rule 7(b)
where the district court treated a motion as conceded
“because the plaintiffs failed to respond”). But
it has also found that dismissing a conceded motion with
prejudice can be an abuse of discretion. See Cohen,
819 F.3d at 484 (“[T]he district court . . . abused its
discretion by dismissing the case when its dismissal of the
complaint under Local Rule 7(b) should have been, at most,
“[a] plaintiff may file a Title VII or Rehabilitation
Act action in federal court only after exhausting her
administrative remedies before the relevant federal agency
for each allegedly discriminatory act.” Smith v.
Lynch, 106 F.Supp.3d 20, 41 (D.D.C. 2015) (collecting
cases). “Title 29 of the Code of Federal Regulations
describes the administrative process for filing
discrimination complaints against the federal
government.” Blue v. Jackson, 860 F.Supp.2d
67, 72 (D.D.C. 2012). “[O]ne who believes he has been
subjected to discrimination by his federal-government
employer ‘must consult a[n] [EEO] Counselor prior to
filing [a formal administrative] complaint in order to try to
informally resolve the matter.'” Id.
(quoting 29 C.F.R. § 1614.105(a)). The “aggrieved
person must initiate contact with a[n] [EEO] Counselor within
45 days of the date of the matter alleged to be
discriminatory.” 29 C.F.R. § 1614.105(a)(1). If
counseling is unsuccessful, “[i]n order to exhaust
administrative remedies, a complainant must file . . . a
formal complaint” with the agency. Blue, 860
F.Supp.2d at 73 (citing Hamilton v. Geithner, 666
F.3d 1344, 1350 (D.C. Cir. 2012)). An employee may seek
relief in federal court only after an agency issues a final
adverse decision or 180 days have elapsed, whichever comes
first. Id. (discussing Title VII exhaustion);
Dick v. Holder, 80 F.Supp.3d 103, 110, 117 (D.D.C.
2015) (discussing Rehabilitation Act exhaustion).
Court finds that the facts of this case present a
“straightforward” application of Local Rule 7(b).
See, e.g., Fox, 389 F.3d at 1294;
Voacolo v. Fed. Nat'l Mortg. Ass'n, 224
F.Supp.3d 39, 43 (D.D.C. 2016) (“The Court finds that
the facts of this case present a ‘straightforward'
application of Local Rule 7(b) because [plaintiff] has not
asked for additional time or filed any response to the
motions to dismiss despite repeated warnings to do
so.”). On September 20, 2017, the FCC moved to dismiss
Chan's complaint on the ground that he failed to exhaust
his administrative remedies because he did not timely
initiate contact with an EEO Counselor or file a formal
complaint with the OWD before filing this action. Mot. at
5-8. Chan never responded to this Motion, despite two
warnings from this Court to do so. See ECF Nos. 7-8.
Thus, pursuant to Local Rule 7(b), the Court treats the
FCC's Motion as conceded and grants it. See,
e.g., Jackson, 516 F. App'x 3;
Voacolo, 224 F.Supp.3d at 43; Davenport v.
United States, No. 07-cv-56 (RJL), 2007 WL 2122394, at
*1 (D.D.C. July 24, 2007) (“In light of the fact that
plaintiff failed to file an opposition to defendants'
motion to dismiss, even when the Court issued an Order
requiring the plaintiff to do so or face the consequences of
it being treated as conceded, . . . the Court will treat
defendants' motion as conceded.”).
the FCC requests that Chan's complaint be dismissed with
prejudice, Mot. at 10, the Court declines to do so. The FCC
has not argued why this case satisfies the “high”
bar for dismissing a complaint with prejudice, Belizan v.
Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006), and the
Court treads lightly when issuing a “case-ending
sanction, ” Peterson v. Archstone Communities
LLC, 637 F.3d 416, 417 (D.C. Cir. 2011). Cf.
Cohen, 819 F.3d at 484 (noting “dismissal of
the complaint without prejudice would have been the
proper route to accomplish Local Rule 7(b)'s
docket-management objectives”); Rudder v.
Williams, 666 F.3d 790, 794 (D.C. Cir. 2012)
(“Dismissal with prejudice is the exception, not the
rule, in federal practice because it ‘operates as a
rejection of the plaintiff's claims on the merits and
[ultimately] precludes further litigation of
them.'” (alteration in original) (quoting
Belizan, 434 F.3d at 583)). Thus, the Court will
dismiss the complaint, and the case, without prejudice.
reasons set forth above, the FCC's Motion to Dismiss (ECF
No. 6) is GRANTED AS CONCEDED.
Plaintiff's complaint (ECF No. 1), and the case, are
DISMISSED WITHOUT PREJUDICE. ...