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Achoe v. Clayton

United States District Court, District of Columbia

September 13, 2018

ROBERT ACHOE, Plaintiff,



         Securities 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.

         I. Background

         A. Factual Background

         As 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.

         Achoe 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[1] 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.[2] Kelly Gibbs, a white woman, was Achoe's direct supervisor before she became the Chief of the Office of Security Services. Id.

         Achoe 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.

         During 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.” Id.

         Soon 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.

         On June 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.

         In 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.” Id.

         In 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.

         In 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. Id.

         In 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.

         In June 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 insubordination.” Id.

         B. Procedural Background

         Achoe 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.[3] 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.

         Achoe 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.

         II. Legal Standards

         A. Rule 12(b)(6) standards

         In 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 (D.D.C. 2016).

         B. Exhaustion of Administrative Remedies

         A 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.

         C. Su ...

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