110 F. Supp. 3d 16
D.D.C.2015Background
- Hicklin worked as an IT Specialist at the VA from May 2013 to April 2014 and had repeated conflicts with his supervisor, Darryl McGraw, including alleged threats by Hicklin toward McGraw.
- VA investigated coworker reports of threatening language and proposed removal for repeated threats; Hicklin filed an EEO charge alleging race (Black) and religion (Christian) discrimination and later amended it to include his actual termination.
- The EEO office accepted the amendment as part of the overall harassment claim and told Hicklin to notify them within seven days if the amendment was incorrect; he did not do so.
- Hicklin later sued in district court asserting retaliation (for filing an EEO complaint) and other discrimination claims; VA moved to dismiss the retaliation count for failure to exhaust administrative remedies.
- The district court considered whether Hicklin’s retaliation claim was procedurally barred under (1) the majority view requiring separate exhaustion for discrete acts post-charge and (2) the minority “like or reasonably related” Park test; the court found failure under both approaches.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hicklin exhausted administrative remedies for his retaliation claim | Hicklin contends his termination was retaliatory and is covered by his EEO proceedings and related filings | VA argues Hicklin never asserted retaliation in his EEO charge and thus failed to exhaust administrative remedies for that discrete claim | Dismissed: Hicklin did not exhaust because his EEO charge alleged only race and religion discrimination and gave no notice of retaliation |
| Whether Morgan requires separate exhaustion for discrete retaliatory acts after an administrative charge | Hicklin relies on cases allowing related post-charge retaliation claims to proceed without separate exhaustion | VA relies on the majority reading of Morgan that discrete acts require discrete administrative exhaustion | Court: Regardless of which Morgan interpretation applies, Hicklin’s claim fails — he did not administratively allege retaliation and the claim is not reasonably related to his discrimination allegations |
| Whether Hicklin’s termination is "like or reasonably related" to his race/religion EEO allegations (Park test) | Hicklin implies the termination grew out of the harassment and discrimination alleged in his EEO filings | VA contends the retaliation theory is distinct and was not presented to the EEO; thus the agency lacked notice to investigate retaliation | Held: Not reasonably related — the amended EEO charge did not indicate the termination was motivated by protected EEO activity |
| Whether the EEO office’s acceptance of the termination amendment forecloses VA’s exhaustion defense | Hicklin points to the EEO’s acceptance of the amendment as incorporation of termination into the harassment claim | VA notes no explicit allegation of retaliation and that the accepted amendment did not put VA on notice of a retaliation theory | Held: Acceptance of the amendment did not supply the required notice of a retaliation claim; Hicklin failed to correct or clarify the record, so exhaustion is lacking |
Key Cases Cited
- National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (distinguishing discrete acts from continuing violations)
- Park v. Howard Univ., 71 F.3d 904 (D.C. Cir. 1995) ("like or reasonably related" test for administrative exhaustion)
- Bowden v. United States, 106 F.3d 433 (D.C. Cir. 1997) (Burden-shifting on exhaustion defense)
- Hussain v. Nicholson, 435 F.3d 359 (D.C. Cir. 2006) (elements of retaliation claim)
- Lombardi v. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard for plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard and reasonable inferences)
- Marshall v. Federal Express Corp., 130 F.3d 1095 (D.C. Cir. 1997) (vague charges fail to give adequate notice to EEOC)
- Boniface v. United States Dep’t of Homeland Sec., 613 F.3d 282 (D.C. Cir. 2010) (agency must have notice to investigate; exhaustion serves investigatory function)
- Payne v. Salazar, 619 F.3d 56 (D.C. Cir. 2010) (declining to resolve split over Morgan’s effect on Park test)