United States District Court, District of Columbia
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
and Exchange Commission (“SEC”) employee Robert
Achoe has sued the agency on various claims of
discrimination, hostile work environment, and retaliation.
The SEC moves to dismiss some of Achoe's claims for
failure to exhaust his administrative remedies and the rest
for failure to state a claim upon which relief can be
granted. For reasons discussed below, the Court will grant
the motion in part and deny it in part.
required on a motion to dismiss, the Court draws this factual
background from the complaint, assuming the truth of all
well-pled allegations. See Sissel v. U.S. Dep't of
Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir.
2014). The agency of course disputes many of the allegations.
is an African-American man in his fifties. Compl. ¶ 4.
He has been employed at the SEC since 2004. Id.
¶ 6. In November 2011, he transitioned from being an
SK-12 Paralegal Specialist to an SK-12
Management and Program Analyst in the SEC's Continuity of
Operations Program (“COOP”), within its Office of
Security Services. Id. Kelly Gibbs, a white woman, was
Achoe's direct supervisor before she became the Chief of
the Office of Security Services. Id.
was required to participate in a year-long “financial
watch program” from 2013 to 2014 after a background
investigation revealed a delinquent debt. Id. ¶
7. In response, Achoe provided to Gibbs the notice of his
loan modification but not the modification agreement itself,
which Gibbs “demanded to see” as part of the
program. Id. Because Gibbs could not produce an
agency regulation or rule requiring disclosure, Achoe refused
to comply. Id. After speaking with the then-Chief of
Security Services, who admitted there was no such rule or
regulation, Achoe provided the agreement to Gibbs.
Id. As part of the program, Achoe provided proof of
monthly loan payments and Gibbs conducted monthly credit
inquiries which Achoe says negatively impacted his credit
score. Id. According to Achoe, white employees
(presumably those with bad credit) were not required to
participate in the financial watch program. Id.
a lunch break in 2014, Achoe took his daily medication for
blood pressure and cholesterol, which can cause drowsiness,
and briefly dozed off in his chair. Id. ¶ 8.
When he awoke, he noticed that an agency security contractor
was taking his photograph. Id. Two contractors
laughed at Achoe. Id. Achoe explained what had
happened to the then-Chief of Security Services, who said he
would speak to the Branch Chief. Id. Later, Achoe
received a report that Gibbs “suggested to management
officials that he threatened the contractors.”
after starting to report to Gibbs, Achoe informed her that he
has a fear of flying. Id. ¶ 9. Achoe routinely
travels to SEC Regional Offices in Richmond, Virginia and
Blueridge, Virginia. Id. Gibbs allegedly denied
Achoe's request to take Amtrak or drive to these meetings
because she “did not believe Plaintiff had a legitimate
fear of flying.” Id. Gibbs explained to Achoe
that the cost to reimburse him for driving would exceed the
cost of flying. Id. Achoe offered to waive
reimbursement for any cost above airfare. Id. Achoe
claims to know of “another SEC employee . . . who also
has a fear of flying” who “uses Amtrak for longer
distance official government travel.” Id.
25, 2015, Gibbs emailed Achoe a new position description
(“PD”) for a job as an SK-13 level Emergency
Preparedness Specialist. Id. Allegedly after
realizing that the position included a pay grade increase,
Gibbs replaced that position “with a completely new
rewritten [SK-12] Management and Program Analyst PD.”
Id. The SK-12 position requires a
“TS/SCI” security clearance and entails complex
responsibilities. Id. ¶¶ 10-14. However,
it does not provide a possibility for advancement within the
SEC. Id. ¶ 10. Achoe's colleagues are
Security Specialists, which have lower-level responsibilities
and security clearances but built-in pay grade promotions to
SK-13 and a clear opportunity for advancement. Id.
2015, Tawana Harris, an African-American woman, began
supervising Achoe and a white colleague. Id. ¶
15. On February 18, 2016, Harris overheard Achoe having a
phone conversation and asked to whom he was speaking.
Id. ¶ 16. After Achoe identified the caller,
Harris told Achoe “in a sharp tone of voice” that
there was no reason for Achoe to have this conversation, as
she had previously informed him. Id. Achoe
“[took] offense to Ms. Harris's tone of voice,
” but not the correction itself, and responded
“in a firm voice”: “I'm not your
child.” Id. Several colleagues overheard this
exchange. Id. Harris and Achoe met with Gibbs to
discuss the incident. Id. ¶ 17. Gibbs issued
Achoe a letter of reprimand, which would stay in his record
for up to two years, “for speaking loudly to his
supervisor and being disruptive to the office.”
Id. Although Achoe told Gibbs that the letter
mischaracterized the interaction with Harris, he “was
advised that he could be terminated if the Agency determined
that there was a similar incident within a year.”
August 2016, Achoe informed Harris that Gibbs and other
employees and contractors were “monitoring” his
phone calls and in-person meetings. Id. ¶ 18. A
colleague told Achoe that he had seen this happen several
times and had discussed this matter with Harris. Id.
October 2016, Harris prepared annual performance appraisals
for Achoe and the white male whom she supervised and
submitted the appraisals to Gibbs. Id. ¶ 19.
Achoe claims that Gibbs then “arbitrarily
lower[ed]” his evaluation but not the white male's.
December 2016, Gibbs initiated a second investigation into
Achoe and Harris based on false accusations of being
disruptive in the workplace. Id. ¶ 20. Achoe
was interviewed in February 2017 by the agency's Human
Resources Department. Id. The SEC did not take
further action on the matter. Id.
2017, Aimee Primeaux, a white woman, became Achoe and
Harris's supervisor. Id. ¶ 21. Primeaux
allegedly began harassing Achoe and Harris by threatening
discipline for false instances of “misconduct and
initiated contact with an agency Equal Employment Opportunity
(“EEO”) counselor on September 27, 2016.
Pl.'s Opp'n to Mot. to Dismiss
(“Opp'n”) Ex. B. He filed a formal complaint
of discrimination and hostile work environment with the
SEC's Office of Equal Employment Opportunity
(“OEEO”) on November 21, 2016. Def.'s Mot. to
Dismiss (“MTD”) Ex. 1, Final Agency Decision
(“FAD”), at 2. By letter dated December 28, 2016,
OEEO accepted Achoe's hostile work environment claim for
investigation and dismissed a retaliation claim.
Id. A copy of the Report of Investigation was
transmitted to Achoe's representative on May 10, 2017.
Id. at 2. The OEEO issued its FAD on July 18, 2017,
finding that Achoe failed to prove that the SEC subjected him
to a hostile work environment based on age, color, or race.
Id. at 14.
filed this Complaint on October 26, 2017. See ECF
No. 1. He raises claims of discrimination, retaliation, and
hostile work environment under Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e-16, et seq., and the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, et seq.
Rule 12(b)(6) standards
analyzing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must determine whether the
complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
requires “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. To make this
determination, the Court “must take all of the factual
allegations in the complaint as true.” Id. It
also must “constru[e] the complaint liberally in the
plaintiff's favor with the benefit of all reasonable
inferences derived from the facts alleged.” Stewart
v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C.
Cir. 2006). Finally, the Court may only “consider the
facts alleged in the complaint, documents attached thereto or
incorporated therein, and matters of which it may take
judicial notice.” Id. Here, therefore, the
Court may consider: (1) the factual allegations made in
Achoe's Complaint, (2) his informal and formal OEEO
complaints, which are incorporated in his Complaint, and (3)
the FAD, which is a public record subject to judicial notice.
See Vasser v. McDonald, 228 F.Supp.3d 1, 10-11
Exhaustion of Administrative Remedies
federal employee must exhaust his administrative remedies
before filing suit under Title VII or the ADEA. Bowden v.
United States, 106 F.3d 433, 437 (D.C. Cir. 1997); 42
U.S.C. § 2000e-16c (Title VII); 29 U.S.C. §
633a(b)-(d) (ADEA). A plaintiff's purported failure to
exhaust administrative remedies is an affirmative defense
analyzed under Rule 12(b)(6) for failure to state a claim.
See, e.g., Scott v. Dist. Hosp. Partners,
L.P., 60 F.Supp.3d 156, 161 (D.D.C. 2014). The defendant
bears the burden of pleading and proving this affirmative
defense. Bowden, 106 F.3d at 437.