Dick v. Holder
80 F. Supp. 3d 103
D.D.C.2015Background
- Michael G. Dick, an FBI Special Agent, injured his hand in May 2013; after disputes over medical treatment the FBI issued a nationwide BOLO on May 8, 2013 and then suspended his security clearance and later suspended him without pay.
- Dick (through counsel Kevin Byrnes) sent communications in late May–June 2013 asserting disability discrimination (invoking the Rehabilitation Act) and later raised age and reprisal concerns during EEO counseling on June 26, 2013.
- On July 8, 2013 Dick filed a formal EEO charge checking only "age" and "reprisal," not "disability;" the FBI accepted four discrete age claims for investigation and dismissed the reprisal basis for failure to state a claim; it did not list any Rehabilitation Act (disability) discrete-act or hostile-work-environment claims for investigation.
- Dick alleges a range of discrete discriminatory acts and ongoing retaliation/hostile work environment under the Rehabilitation Act and the ADEA, including BOLO issuance, fitness-for-duty examination, disclosure of confidential information, suspension, failure to disclose exam results, interference with counsel, and monitoring.
- The FBI did not take final agency action within 180 days; Dick filed this civil suit in February 2014. Defendants moved to dismiss or for partial summary judgment on exhaustion and failure-to-state grounds; the Court grants in part and denies in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dick exhausted Rehabilitation Act discrete-act claims and hostile-work-environment claims | Dick says he exhausted because he had earlier raised disability claims to the EEO counselor and (he contends) enclosed that letter with the formal charge | FBI says formal charge did not assert disability; it reasonably omitted disability claims from investigation and Dick did not timely object | Dismissed for lack of jurisdiction: Dick failed to exhaust Rehabilitation Act discrete-act and hostile-work-environment claims because he did not timely challenge the agency's omission |
| Whether Dick exhausted ADEA hostile-work-environment claim | Dick argues charge’s allegations could reasonably encompass an ADEA hostile-work-environment claim | FBI argues the formal charge and Walker letter limited investigation to discrete age acts and Dick did not clarify | Dismissed: Dick failed to exhaust ADEA hostile-work-environment claim because he did not dispute the agency’s scope decision |
| Whether Dick exhausted Rehabilitation Act and ADEA retaliation claims | Dick argues his May–June communications (through counsel and at EEO counseling) constituted protected opposition and the agency partially dismissed reprisal; 180 days lapsed without final action so he could sue | FBI argues reprisal was dismissed and Dick did not respond to the dismissal notice | Denied: Court holds Dick exhausted retaliation claims—partial dismissal was reviewable and, after 180 days with no final action, Dick could bring suit; the reprisal claim was like/reasonably related to the court claims |
| Whether Dick pleaded protected activity preceding alleged retaliatory acts (failure-to-state) | Dick says his counsel’s May 23 and June 7 communications and his June 26 EEO counseling constituted protected activity under the Rehabilitation Act and ADEA | Defendants contend some adverse acts (e.g., BOLO, fitness-for-duty notice, suspension) preceded any protected activity | Mixed: Court dismisses retaliation claims to the extent they rest on pre-protected acts (BOLO; initially ordering exam and suspension under ADEA), but denies dismissal for retaliatory acts that occurred after the protected communications (e.g., exam, non-disclosure of results, interference with counsel, monitoring) |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (jurisdictional presumption and limits on federal-court jurisdiction)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (pleading standard: plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard and consideration of pleadings)
- Park v. Howard Univ., 71 F.3d 904 (scope of administrative charge: "like or reasonably related" test)
- Franklin v. Potter, 600 F. Supp. 2d 38 (partial agency dismissal and exhaustion—may sue after 180 days when agency gives final action incorporating dismissal)
- Spinelli v. Goss, 446 F.3d 159 (exhaustion jurisdictional under Rehabilitation Act)
- Mahoney v. Donovan, 824 F. Supp. 2d 49 (Rehabilitation Act exhaustion is jurisdictional)