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Jimenez v. McAleenan

United States District Court, District of Columbia

August 20, 2019

KEVIN McALEENAN, Acting Secretary, U.S. Department of Homeland Security,[1] Defendant.



         Rolando Jimenez alleges that he has been the victim of discrimination during his time as an Immigration Officer with the Department of Homeland Security (“DHS”). He brings an array of claims against the agency under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (“ADEA”). Rather than move to dismiss, DHS answered Jimenez's amended complaint and then moved for judgment on the pleadings or, in the alternative, summary judgment. Jimenez opposes DHS's motion, largely on the ground that it would be unfair to dismiss the case before he has had an opportunity to substantiate his claims through discovery. Having carefully reviewed Jimenez's claims, the Court concludes that most of them can be fully and fairly decided in DHS's favor without discovery. Accordingly, the Court will grant judgment to DHS in large part, as explained below.

         I. Background

         A. Factual Background

         Mr. Jimenez was born in 1963 in the Dominican Republic. Am. Compl., ECF 6, ¶ 18. He began working for the predecessor agency of U.S. Citizenship and Immigration Services (“USCIS”), a component of DHS, in 1996. Id. ¶ 19. He is currently an Immigration Officer in USCIS's Fraud Detection National Security Headquarters based in Washington, DC. Id. ¶ 20.

         Jimenez's federal court complaint, which follows three agency EEO complaints filed in 2012, 2015, and 2017, alleges numerous instances of discrimination, retaliation, and harassment. DHS has helpfully numbered these events one through twenty; Jimenez has adopted this numbering convention for purposes of his opposition, and the Court will follow suit.

         In his June 2012 EEO complaint, Jimenez alleged that DHS discriminated against him on the basis of race, national origin, age, and reprisal for prior EEO activity when it: (Event 1) improperly counseled him for misuse of government email; (Event 2) denied him the opportunity to attend training sessions; and (Events 3 through 13) failed to select him for 11 separate positions within the agency for which he applied.[2] Id. ¶¶ 1, 21-29; see also Mot. Ex. 9 (2012 EEO Compl.), ECF 31-3, at 113[3] (checking boxes for race, national origin, age, and retaliation/reprisal); Mot. Ex. 10 (2012 Agency Acceptance Letter), ECF 31-3, at 125.

         In his 2015 EEO complaint, Jimenez alleged that his then first-line supervisor, Shari Golston, who he says was aware of his prior EEO activity, see Am. Compl. ¶¶ 30-35, (Event 14) falsely accused him of failing to turn in weekly reports and a telework agreement, id. ¶¶ 36-47, and lying to her about speaking with an IT employee about a computer problem, id. ¶¶ 48-57. According to Jimenez, roughly a month after he filed the 2015 EEO complaint, Golston and Jimenez's second-line supervisor, Matthew O'Brien, again chastised him for failing to turn in periodic work reports; the EEO counselor on the case contacted Golston to inform her that Jimenez had complained of additional harassment based on these purportedly false accusations. Id. ¶¶ 59, 63-64. (Event 15) A few weeks later, Golston allegedly contacted INTERPOL- where Jimenez was completing a two-year detail-to falsely accuse him of sending “Red Notices”[4] to a personal email account contrary to INTERPOL policy. Id. ¶¶ 65-69. This accusation, Jimenez said, led INTERPOL to terminate his detail 16 months early. Id. ¶¶ 71-72. (Event 16) The following month, in July 2015, Golston purportedly denied Jimenez's request to attend a training session that other employees were permitted to attend. Id. ¶¶ 79-81. (Event 17) Finally, Jimenez alleged that he was the only employee in his branch to be denied access to an agency information system-the Homeland Security Data Network (“HSDN”)-which is used to share sensitive but not classified information and which he says he needed to complete work assignments. Id. ¶¶ 82-89.[5]

         Although Jimenez had two new supervisors as of Spring 2017, his grievances persisted. He filed another EEO complaint in June 2017, [6] alleging three instances of reprisal for his prior EEO activity. (Event 18) First, that he was suspended without pay in March 2017 based on Golston's “false reports” that he had sent Red Notices to his personal email account while on detail at INTERPOL. Id. ¶¶ 90-91. Then, that he was subjected to a hostile work environment from April 2017 to July 2017 because (Event 19) his new “management unfairly scrutinized his work” and (Event 20) imposed new job requirements that were impossible to meet because of that “unfair scrutiny.” Id. ¶¶ 96-100. As a result, Jimenez charged, his supervisors downgraded his performance evaluation from “Achieved Excellence” to “Achieved Expectations.” Id. ¶ 101.

         Jimenez's federal complaint advances eight counts based on these twenty events: Title VII claims for retaliatory hostile work environment based on prior EEO activity (Count I), retaliation for prior EEO activity (Count II), discrimination based on race (Count III), hostile work environment based on race (Count IV), discrimination based on national origin (Count V), and hostile work environment based on national origin (Count VI); and ADEA claims for discrimination based on age (Count VII) and hostile work environment based on age (Count VIII). Jimenez's complaint does not specify which of the twenty events described above support which of his eight claims and instead incorporates by reference all preceding paragraphs into each claim.

         In his briefing, Jimenez clarifies that he “does not claim age, race and national origin as bases” for Events 14 through 20, which comprise the allegations advanced in his 2015 and 2017 EEO complaints. Opp., ECF 27, at 14. Instead, he alleges only reprisal and retaliatory hostile work environment arising out of those events. See id. The Court takes this to mean that Counts III through VIII are based exclusively on the allegations set forth in his 2012 EEO complaint while Count I is based on the events alleged in the 2015 and 2017 complaints, see infra Part III(A)(2)(b), and Count II is based on the events identified in all three EEO complaints. For ease of reference, the following chart summarizes the Court's interpretation of Jimenez's underlying claims and corresponding administrative complaints.



EEO Complaint

Count I: retaliatory hostile work environment

Events 14 through 20

2015, 2017

Count II: retaliation for prior EEO activity

Events 1 through 20

2012, 2015, 2017

Count III: racial discrimination

Events 1 through 13


Count IV: hostile work environment based on race

Events 1 through 13


Count V: national origin discrimination

Events 1 through 13


Count VI: hostile work environment based on national origin

Events 1 through 13


Count VII: age discrimination

Events 1 through 13


Count VIII: hostile work environment based on age

Events 1 through 13


         B. Procedural Background

         Jimenez filed the operative amended complaint in April 2018, see Am. Compl., ECF 6, and the government answered in July 2018, see Answer, ECF 8. Then, before discovery commenced and with leave of the Court, DHS moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), or, in the alternative, for summary judgment pursuant to Rule 56(a). See Mem. in Supp. of Mot. for J. Pleadings or Summ. J. (“Mot.), ECF 31-1.[7]Jimenez opposes the motion, which he treats exclusively as one for judgment on the pleadings because discovery has not commenced. See Opp. at 1, 11-13.[8] After much delay, [9] the motion is ripe for this Court's review.

         II. Standard of Review

          A party may move for judgment on the pleadings after the pleadings are closed but early enough so as not to delay trial. Fed.R.Civ.P. 12(c).[10] A movant is entitled to judgment on the pleadings under Rule 12(c) if it “demonstrates that no material fact is in dispute and that it is entitled to judgment as a matter of law.” Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008) (quoting Peters v. Nat'l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992)). The parties dispute whether this standard is more like that for a motion to dismiss under Rule 12(b)(6) or a motion for summary judgment under Rule 56. The answer is that it depends. “Rule 12(h)(2)[(B)] expressly authorizes a party to file a motion to dismiss for failure to state a claim pursuant to Rule 12(c).” Saunders-El v. Rohde, 778 F.3d 556, 559 (7th Cir. 2015). In other words, Rule 12(c) may serve as an “auxiliary or supplementary procedural device to determine the sufficiency of the case before proceeding any further.” 5C Charles A. Wright & Arthur Miller, Fed. Prac. & Proc. § 1367 (3d ed. 2019). When that's the case-as it is here-the standard of review is “functionally equivalent” to that for a Rule 12(b)(6) motion. Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012) (explaining that “the requirements of Iqbal and Twombly . . . apply to a Rule 12(c) motion, which here is functionally equivalent to a Rule 12(b)(6) motion”); see also Nichols v. Young, 248 F.Supp.3d 1, 6 (D.D.C. 2017) (explaining that the “sole difference” between the two rules is that “a Rule 12(c) motion is the proper vehicle to raise such a challenge after the defendant has answered”). Under that standard, the Court must decide whether the complaint contains “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)).

         “When evaluating a motion for judgment on the pleadings, the [C]ourt may rely on the pleadings, the exhibits to the pleadings, and any judicially noticeable facts to assess whether the movant has met its burden.” Kambala v. Checchi & Co. Consulting, Inc., 280 F.Supp.3d 131, 137 (D.D.C. 2017); see also Mpoy v. Rhee, 758 F.3d 285, 291 n.1 (D.C. Cir. 2014) (considering under Rule 12(c) an email “incorporated into the complaint by reference” because, when evaluating “whether a complaint fails to state a claim, we may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which we may take judicial notice” (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). And while the Court construes the factual allegations in the light most favorable to the non-moving party, it is not bound by that party's legal conclusions. See Sissel v. U.S. Dep't of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014).

         III. Analysis

         DHS first seeks dismissal of Jimenez's claims to the extent they are premised on discrete events that it contends he failed to exhaust administratively. The Court will therefore begin with the agency's exhaustion arguments before moving to consider whether DHS is entitled to judgment on the pleadings on those claims that Jimenez did exhaust.

         A. Exhaustion[11]

         An employee must timely file an administrative claim with his employing agency (here, DHS) and exhaust all internal remedies before bringing a civil action under Title VII or the ADEA. See Coleman v. Duke, 867 F.3d 204, 206 (D.C. Cir. 2017). DHS argues that Jimenez failed to exhaust: (1) all claims based on the events alleged in Jimenez's 2012 EEO complaint and (2) the hostile environment claims to the extent they are based on the discrete acts identified as Events 1 through 13 from the 2012 EEO complaint, Events 15 through 17 from the 2015 EEO complaint, and Event 18 from the 2017 EEO complaint.[12]

         1. 2012 EEO complaint

         The Court starts with whether Jimenez exhausted the allegations in his 2012 EEO complaint, which form all or part of the basis for the eight counts in this federal action. It is well-established that when “a complainant forces an agency to dismiss or cancel the complaint by failing to provide sufficient information to enable the agency to investigate the claim, he may not file a judicial suit, ” and if he does, “the suit will be barred for failure to exhaust administrative remedies.” Wilson v. Pena, 79 F.3d 154, 164 (D.C. Cir. 1996). DHS argues that this principle applies here because “the undisputed facts reveal that Plaintiff did not cooperate during the EEOC proceedings related to his 2012 EEO Complaint, which culminated in the EEOC Administrative Judge's (‘AJ') dismissal of his case regarding these claims.” Mot. at 15. Jimenez completely fails to respond to the government's argument. See Opp. at 13-14. It is clear to the Court, however, that although Jimenez engaged in misconduct during the EEOC hearing process, the agency was ultimately able to investigate and reach the merits of his complaint.

         After investigating his formal 2012 EEO complaint, USCIS notified Jimenez in April 2013 of his right to either request a hearing before an EEOC administrative judge or receive a final agency decision. Jimenez elected the EEOC hearing process. See Mot. Ex. 17 (Election Form), ECF 31-4, at 27. The EEOC administrative judge dismissed the complaint from the hearing process for discovery-related misconduct (but not from the administrative process entirely). See Mot. Ex. 23 (2012 AJ Sanction Order), ECF 31-5, at 9 (dismissing complaint “from the Commission hearing process” for his “dilatory tactics” including “repeated ad hominem attacks on Agency counsel, ” “willful disregard for this AJ's order to respond to discovery requiring this AJ to issue an order compelling him to comply, ” and “feigned illness used to avoid deposition” (citing 29 C.F.R. § 1614.109(f)(3)). The administrative judge then remanded the complaint to DHS for a final agency decision. Id. On remand, DHS's Office for Civil Rights and Civil Liberties (“CRCL”) “requested a supplemental investigation” into Jimenez's allegations. Mot. Ex. 24 (2012 CRCL Final Agency Decision), ECF 31-5, at 13. After USCIS completed that investigation, CRCL issued its final agency decision denying Jimenez's claims on the merits. Id. at 16-22. Finally, Jimenez appealed to the EEOC, which affirmed both the administrative judge's decision to dismiss his hearing request as a sanction for his conduct and CRCL's final agency decision on the merits. Mot. Ex. 25 (2012 EEOC Decision), ECF 31-5, at 31-33.

         As the D.C. Circuit explained in Wilson, “[w]here the agency has taken final action based on an evaluation of the merits, it cannot later contend that the complainant failed to exhaust his remedies.” 79 F.3d at 165. This is because “the policy underlying the [exhaustion] doctrine is not served unless the default prevents the agency from acting on the merits of the complaint.” Id. Because the agency investigated and then issued a final decision on the merits, the Court concludes that Jimenez-notwithstanding his unacceptable conduct during the EEOC hearing process-properly exhausted his allegations of discrimination and reprisal based on the allegations advanced in his 2012 EEO complaint.[13]

         2. Hostile work environment claims

         DHS also argues that Jimenez failed to exhaust the hostile work environment claims in Counts I, IV, VI, and VIII. See Mot. at 19-20.

         a. Discriminatory hostile work environment

         The Court takes the last three counts first. Counts IV, VI, and VIII advance hostile work environment claims based on race, national origin, and age. Again, these claims are based exclusively on the 2012 EEO complaint.

         “[C]ourts do not require a plaintiff to have invoked a hostile work environment claim by name or to use specific ‘magic words' in order to exhaust it. But typically the plaintiff must offer at least some suggestion of a hostile work environment . . . such as by referring to an ongoing pattern of conduct or describing a workplace pervaded by abuse.” Congress v. District of Columbia, 324 F.Supp.3d 164, 171 (D.D.C. 2017) (Cooper, J.) (citation omitted). Courts therefore look to whether a plaintiff described only discrete events in his administrative charge or also patterns of conduct or other characteristics typical of a hostile work environment claim. See, e.g., Leach v. Nat'l R.R. Passenger Corp., 128 F.Supp.3d 146, 153 (D.D.C. 2015) (Cooper, J.) (noting that plaintiff alleged in EEOC charge that harassment was “ongoing” and that work environment “became hostile”).

         Jimenez's 2012 EEO complaint makes no mention of a hostile work environment. In addition, neither his charge nor the agency's letter reflecting the allegations accepted for investigation alludes to an ongoing pattern of conduct or a workplace pervaded by abuse. See Congress, 324 F.Supp.3d at 171. The charge's description of discrete events could not, therefore, be “reasonably expected upon investigation to lead to a hostile work environment claim.” Park v. Howard Univ., 71 F.3d 904, 908 (D.C. Cir. 1995). This conclusion is reflected in CRCL's final agency decision, which addresses in full Jimenez's allegations of discrete acts of discrimination but in no way references ongoing harassment or a hostile work environment. See 2012 CRCL Final Agency ...

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