United States District Court, District of Columbia
N. MCFADDEN, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
General FMLA Leave Allegations
Rogers alleges that in or around August through October 2016,
he requested FMLA leave which was denied without explanation.
Id. ¶¶ 29, 32, 34. 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.
Leave Warning Letter in August 2016
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.
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.
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.
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.
Leave Reprisal in October 2016
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.
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. 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.
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 ...