80 F.Supp.3d 103
D.D.C.2015Background
- Plaintiff Michael G. Dick, an FBI Special Agent, injured his hand in May 2013 and thereafter alleged disability- and age-based mistreatment by the FBI (BOLO alert, security-clearance suspension, mandatory fitness-for-duty exam, suspension without pay, alleged disclosure of confidential information, monitoring and interference with counsel).
- Dick (through counsel Byrnes) sent informal complaints asserting Rehabilitation Act (disability) protections in late May–early June 2013 and sought EEO counseling on June 21, 2013; he filed a formal EEO charge on July 8, 2013 asserting age and reprisal (but not disability) bases.
- On October 23, 2013 the FBI accepted certain discrete age-discrimination claims for investigation and dismissed the “reprisal” basis for failure to state a claim; it did not list any Rehabilitation Act (disability) claims for investigation.
- Dick neither responded to the FBI’s letter challenging the scope of investigation nor requested an administrative hearing; 180 days elapsed and he filed this suit in February 2014 asserting Rehabilitation Act and ADEA claims for discrete acts, hostile work environment, and retaliation.
- The government moved to dismiss or for partial summary judgment arguing failure to exhaust administrative remedies and failure to state claims for many counts; the Court (Judge Contreras) granted in part and denied in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disability (Rehabilitation Act) discrete-act and hostile-work-environment claims were exhausted | Dick contends he exhausted because he enclosed earlier Rehabilitation Act letter with his formal charge and raised disability in pre-charge counseling | FBI argues formal charge did not assert disability claims and agency reasonably omitted them; plaintiff didn’t timely object to omission | Dismissed for lack of jurisdiction: Rehabilitation Act discrete-act and hostile-work-environment claims not exhausted (plaintiff failed to challenge omission) |
| Whether ADEA hostile-work-environment claim was exhausted | Dick argues the formal charge allegations could encompass a hostile environment | FBI argues formal charge alleged only discrete acts and the agency reasonably limited investigation; plaintiff didn’t object | Dismissed: ADEA hostile-work-environment claim not exhausted |
| Whether Rehabilitation Act and ADEA retaliation claims were exhausted | Dick relies on (1) his pre-charge written complaints invoking Rehabilitation Act and (2) the FBI’s partial dismissal of “reprisal” and the 180-day rule allowing civil suit | FBI contends plaintiff failed to preserve or appeal the reprisal dismissal and did not respond to Walker’s letter | Denied: Retaliation claims exhausted — partial dismissal of reprisal does not bar suit after 180 days where claims are like/reasonably related to those in court |
| Whether retaliation claims state a claim (timing/protected activity) | Dick points to May–June 2013 communications (Byrnes emails/letters, EEO counseling) as protected activity supporting later adverse acts | FBI argues no protected activity occurred before some adverse acts (e.g., BOLO) so those incidents cannot be retaliatory | Mixed: Claims dismissed as to BOLO (no pre-BOLO protected activity); ADEA/Rehab retaliation claims survive as to other post-protected-activity acts (fitness exam, suspension effects, disclosure, nondisclosure of results, interference/monitoring) |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (jurisdictional presumption; Rule 12(b)(1) context)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible to survive 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standards and plausibility)
- Park v. Howard Univ., 71 F.3d 904 (scope of administrative charge: "like or reasonably related")
- Franklin v. Potter, 600 F. Supp. 2d 38 (partial agency dismissal can still permit suit after 180 days when final action lacks and claims are related)
- Solomon v. Vilsack, 628 F.3d 555 (Rehabilitation Act forbids discrimination prohibited by ADA)
- Jones v. Bernanke, 557 F.3d 670 (ADEA retaliation prima facie elements)
- Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (distinguishing discrete acts from hostile work environment)