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Rogers v. Smithsonian Institution

United States District Court, District of Columbia

April 10, 2018




         Matthew Rogers, a Security Officer for the Smithsonian Institution, has sued his employer for alleged discriminatory and retaliatory conduct due to race, disability, use of leave under the Family Medical Leave Act (“FMLA”), and filing of Equal Employment Opportunity (“EEO”) complaints. Compl., ECF No 1. The Complaint lists eight counts of action-Violation of Title VII of the Civil Rights Act of 1964, Hostile Work Environment based on Race, Violation of the Americans with Disabilities Act of 1990 (“ADA”) (two counts), Violation of the Rehabilitation Act of 1973 (“Rehabilitation Act”) (two counts), Violation of the FMLA, and Retaliation-but also makes other general allegations that are incorporated by reference into each count. See id.

         The Smithsonian Institution and its Secretary (collectively, the “Smithsonian” or “Defendants”) have filed a motion to dismiss all of Mr. Rogers' allegations as either failing to state a claim upon which relief can be granted or, because they are not administratively exhausted, this Court lacks subject matter jurisdiction. Defs.' Mot. to Dismiss, ECF No. 6. Upon consideration of the pleadings, relevant law, and related legal memoranda in opposition and in support, the Defendants' motion will be granted, and the Complaint will be dismissed without prejudice.

         I. Background

         Mr. Rogers is an African-American male who works as a Security Officer at the Smithsonian's warehouse in Maryland. Compl. ¶¶ 11, 14. He has a certified disability for which he is entitled reasonable accommodation. Id. ¶¶ 26-27. His supervisor and assistant supervisor are both Hispanic. Id. ¶¶ 15, 21. Mr. Rogers' complaints, as alleged, all arise from the following series of events.

         A. General FMLA Leave Allegations

         Mr. Rogers alleges that in or around August through October 2016, he requested FMLA leave which was denied without explanation. Id. ¶¶ 29, 32, 34.[1] He also alleges that his supervisor “threatened” that Mr. Rogers would be “‘disciplined'” if he used his FMLA leave. Id. ¶ 31. Mr. Rogers alleges that in June 2016, he requested FMLA leave to care for his wife, who suffers from cancer and needed assistance at home during treatment. Id. ¶ 35. His supervisor allegedly denied this request without explanation and “used [Mr. Rogers'] FMLA days against him.” Id. ¶¶ 37-38.

         B. Leave Warning Letter in August 2016

         Sometime after Mr. Rogers' FMLA leave request was allegedly denied, his wife had a serious medical episode at home, and Mr. Rogers was able to “arrive in time to assist his wife to receive emergency treatment only because he was returning to pick [up] a personal item.” Id. ¶¶ 40-42. On August 27, 2016, Mr. Rogers received a leave warning letter from his supervisor related to the days missed from work that Mr. Rogers took to care for his wife following the medical episode. Defs.' Mot. to Dismiss Ex. B at 11, ECF No. 6-2. On August 29, 2016, Mr. Rogers' union representative requested that the leave warning letter be rescinded as the days off had previously been accepted for FMLA leave by the Smithsonian's health unit. Compl. Exs. 2-3.

         On September 9, 2016, Mr. Rogers filed an informal complaint (also called pre-complaint processing) with the Smithsonian's Office of Equal Employment and Minority Affairs (“OEEMA”), alleging discrimination based on disability (FMLA). Defs.' Mot. to Dismiss Ex. B. Mr. Rogers wrote that “[m]anagement chose to ignore my FMLA” and that “[o]ther officer[s] have used unscheduled leave who do not have FMLA and was not given a [medical approval] letter.” Id. On September 13, 2016, Mr. Rogers' supervisor rescinded the leave warning notice given that Mr. Rogers' “unscheduled leave usage - days were covered under FMLA.” Id. Ex. C, ECF No. 6-2. On October 11, 2016, EEO Counsellor Shadella Davis issued a counseling report describing the issue as “[w]hether Mr. Rogers was subjected to disparate treatment based on disability (FMLA) when, on August 27, 2016, he received a leave warning letter.” Id. Ex. A, ECF No. 6-2.

         On December 1, 2016, Mr. Rogers filed a formal complaint with the EEO alleging discrimination based on “FMLA/Disability, ” citing the date of discrimination as August 27, 2016. Id. Ex. D, ECF No. 6-2. The complaint was assigned case number 17-07-120116. Id.

         On January 4, 2017, OEEMA dismissed the complaint for failure to state a claim because the leave warning letter was rescinded before Mr. Rogers filed his formal complaint and that “there is no evidence in the record to show that you are currently subjected to any adverse action or that you were denied any entitlement in relation to a term, condition or privilege of employment as a result of the allegation stated in your complaint.” Id. Ex. E, ECF No. 6-2. The letter further advised Mr. Rogers of his rights to file a notice of appeal within 30 calendar days of receipt of the decision with the EEO Commission (“EEOC”), or file a civil action within 90 calendar days of receipt of the decision in an appropriate U.S. District Court. Id. Mr. Rogers received this letter on January 7, 2017. Id. Ex. F, ECF No. 6-2.

         C. Leave Reprisal in October 2016

         On October 21, 2016, Mr. Rogers submitted a leave request for October 26, 2016, which was denied. Pl.'s Opp. to Defs.' Mot. to Dismiss (“Pl.'s Opp.”) Ex. 1 at 4, ECF No. 7-2; see also Defs.' Reply to Pl.'s Opp. Ex. A, ECF No. 9-1. He sought pre-complaint processing on October 24, 2016, alleging that his request was denied as reprisal for his prior EEO activity. Id.

         On December 2, 2016, Mr. Rogers filed a formal complaint of discrimination based on retaliation for engaging in prior EEO activity. Id. Ex. D. The complaint was assigned case number 17-08-120216. See Id. Ex. E.[2] On January 4, 2017, OEEMA issued a letter of acceptance to investigate the claim, but on January 26, 2017, OEEMA mailed a “Revised - Letter of Dismissal” of this complaint that “rescinds and supersedes the agency's letter of acceptance dated January 4, 2017.” Id. Exs. E-F.

         OEEMA found that because the request for leave was initially denied but later approved on the same day, it failed to state a claim, and dismissed the complaint. Id. Ex. F. The letter informed Mr. Rogers of the right to file a notice of appeal within 30 days of the receipt of the decision with the EEOC, or to file a civil action ...

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