United States District Court, District of Columbia
CLIFFORD D. PEARSON Plaintiff,
ELAINE L. CHAO, Secretary, U.S. Department of Transportation, Defendant.
G. SULLIVAN UNITED STATES DISTRICT JUDGE.
Clifford D. Pearson, a former federal employee, brings this
action against Elaine L. Chao, Secretary of the United States
Department of Transportation (“DOT” or
“Defendant”). Mr. Pearson alleges, inter
alia, violations of employment discrimination based on
his color and race, pursuant to Title VII of the Civil Rights
Act, 42 U.S.C. § 20003 et seq. (“Title
VII”) and discrimination based on his disability
pursuant to the Rehabilitation Act of 1973, 29 U.S.C §
790 et. seq. (“Rehabilitation Act”). Am.
Compl., ECF No. 8. Pending before the Court is
defendant's renewed motion to dismiss Mr. Pearson's
amended complaint. Upon careful consideration of
defendant's renewed motion to dismiss, plaintiff's
opposition, the defendant's reply thereto, and for the
reasons discussed below, defendant's renewed motion to
dismiss is GRANTED.
Clifford Pearson is an African-American man who was formerly
employed with DOT. He has several grievances with DOT that
relate to DOT's alleged failure to provide reasonable
accommodations for him when he was temporarily disabled and
DOT's alleged discrimination against him because of his
first grievance relates to DOT's alleged discriminatory
treatment based on Mr. Pearson's disability. While
employed at DOT, Mr. Pearson suffered an injury to his spine
that disabled him temporarily. Am. Compl., ECF No. 8 at 21.
This injury led to a diagnosis of a cervical spine fracture,
and Mr. Pearson was medically required to wear a cervical
collar for an extended period of time. Id. From July
2014 to November 2014, he requested accommodations for his
temporary disability in the form a “telework agreement,
office work station modification, and mix use of telework
hours and sick leave.” Id. at 2, 11. He
provided a doctor's note on September 25, 2014, with a
diagnosis and a recommendation that Mr. Pearson be allowed to
work the maximum number of teleworking days the agency allows
weekly for a total of 12 weeks. Id. at 24-25. DOT
authorized Mr. Pearson's request for reasonable
accommodations on October 10, 2014. Id. at 32. After
authorizing the accommodations, DOT required Mr. Pearson to
check in monthly to determine his medical status.
Id. at 33-34.
second grievance relates to DOT's alleged discriminatory
treatment based on DOT's failure to promote Mr. Pearson.
Mr. Pearson applied for an open position of Realty Specialist
and, in early March, the application tracking system
indicated that his application met the vacancy requirements
and had been referred to a manager. Id. at 40.
Around that same time, Mr. Pearson sent an anonymous letter
to EEOC complaining about discrimination in DOT's hiring
practices. Id. at 43.
Pearson was interviewed for the Realty Specialist position,
but on July 21, 2016, he received an email informing him that
another candidate was selected. Id. at 42. Mr. Pearson
learned that a Caucasian woman was chosen instead.
Id. When he asked for advice on ways to be more
competitive for any future comparable positions, he was told
“you are not politically connected” and
“you're taking advice from the wrong people.”
Id. Mr. Pearson alleges he was denied the promotion
because of his race, and in retaliation for the anonymous
complaint that he filed. Id. at 42-43. He also
alleges that he was denied the position because of his prior
requests for leave and telework accommodations, and because
he refused to disclose his medical information during
telework check-ins. Id. at 3.
Pearson's last grievance relates a performance review he
received on July 14, 2016, that stated he “Achieved
Results.” Id. at 12. This rating meant that he
“achieved the results listed in [his] performance
plan” Id. Mr. Pearson argues that this
performance review “evidenced his ability to perform
his duties and qualifications to be promoted from within the
Agency.” Id. at12.
October 25, 2016, Mr. Pearson made an initial contact with an
Equal Employment and Opportunity (“EEO”)
counselor to discuss what he believed were discriminatory
actions by DOT which he alleged began in September 2014 and
continued until October 20, 2016. Am. Compl., Ex. A, ECF No.
9 at 5. He filed a formal complaint on December 30, 2016,
alleging that he was discriminated by DOT because of his
disability when DOT failed to provide a reasonable
accommodation during the months of September to November
2014, and when DOT failed to promote him because of his color
and race. Am. Compl., ECF No. 8 at 3. Generally, Mr. Pearson
alleged that all African-American employees in his office
were not considered for promotion beyond a certain paygrade,
while Caucasian employees were considered for promotion.
See Id. at 10.
February 28, 2017, the Departmental Office of Civil Rights
(“DOCR”) notified Mr. Pearson of its final
decision to dismiss his complaint in its entirety. Am.
Compl., Ex. B, ECF No. 9-1 at 5. DOCR first explained that
EEOC regulations required Mr. Pearson to make first contact
with an EEO counselor within 45 days of the alleged
discriminatory actions. Id. DOCR reasoned that his
first claim based on a request for a reasonable accommodation
occurred from “September 2014 to November 2014, ”
over two years before he contacted an EEO counselor.
Id. His second claim, related to a July 3,
leave request, occurred over a year before he contacted the
EEO counselor. Id. His third claim, that he was
discriminated against because of his race when he was
notified that he did not get a promotion on April 19, 2016,
occurred over six months before he made
contact. Id. Finally, his fourth claim,
that on July 14, 2016, he received a performance appraisal
rating of “Achieved Results, ” occurred over two
months before he contacted the EEO counselor. Id.
Because all of the alleged discriminatory acts occurred
outside the 45-day window, Mr. Pearson's complaint was
dismissed based on untimely contact with the EEO counselor.
Id. (citing 29 C.F.R. § 1614.107(a)(1)). DOCR
informed Mr. Pearson that he could appeal the decision to the
Office of Federal Operations (“OFO”) or file a
civil action in a U.S. District Court. Id.
Pearson notified DOCR of his intent to appeal the final
decision to the OFO but failed to file a supporting brief.
Am. Compl., Ex. B, ECF No. 9-1 at 8-10. Defendant filed a
brief in opposition, arguing the claims were properly
dismissed by the agency because Mr. Pearson failed to timely
initiate contact with the EEOC. See generally Am.
Compl., Ex. D, ECF No. 9-2.
reversed the final agency action dismissing the complaint.
Am. Compl., Ex. E, ECF No. 9-3. OFO reasoned that although
all of the specific examples of racial and disability
discrimination cited by DOT in its dismissal occurred well
before the 45-day limit, Mr. Pearson “alleged
discriminatory events from 2014 through his departure from
Agency employment on October 30, 2016.” Id. at
8. OFO explained that because the incidents that make up a
hostile environment claim collectively constitute one
unlawful employment practice, the entire claim is actionable,
as long as at least one incident that is part of the claim
occurred within the filing period. Id. at 9. OFO
ruled that “various incidents comprising Mr.
Pearson's hostile work environment claim occurred within
the 45-day period preceding [Mr. Pearson's] EEO counselor
contact.” Id. Specifically, OFO explained that
Mr. Pearson noted that although DOT had an official policy of
not granting same-day requests for leave/telework, another
employee regularly requested such leave. Id. OFO
referenced an October 20, 2016 email in which an employee
expressed her intention to telework and take leave on that
same day. Id. at 8.
the disability claim, OFO stated that Mr. Pearson's
complaint could be construed as a denial of a reasonable
accommodation, or as an agency action that caused him to
cease receiving a reasonable accommodation earlier than
contemplated. Id. at 9. OFO explained that
“because an employer has an ongoing obligation, to
provide a reasonable accommodation, failure to provide such
an accommodation constitutes a violation each time the
employee needs it.” Id. (citation omitted).
OFO remanded the matter to DOT for further processing and
investigation in accordance with OFO's order.
Id. at 9-10. OFO also informed Mr. Pearson of his
right to file a civil action on the underlying complaint.
Id. at 10. If a civil action is filed, the
administrative proceedings would be terminated. Id.
(citing 29 C.F.R. § 1614.409).
than take his chances with DOT, Mr. Pearson filed a complaint
in this Court. Mr. Pearson failed to respond to
defendant's first motion to dismiss but subsequently
filed an amended complaint alleging several new claims. Am.
Compl., ECF No. 8. Defendant has filed a renewed motion to
dismiss which is now ripe for adjudication. Def.'s Mot.
to Dismiss, ECF No. 15.