Koch v. Schapiro
777 F. Supp. 2d 86
D.D.C.2011Background
- Koch, a 62-year-old white Jewish SEC employee since 1991, has multiple medical conditions and a history of EEO litigation against the SEC.
- In December 2007 Koch requested workplace accommodation to continue cardiac rehabilitation with minimal leave usage; SEC allegedly did not respond.
- Koch filed an EEO complaint; the SEC planned a contract investigation by DSZA and a contract investigator, raising privacy concerns about medical records.
- Koch questioned protections for confidential medical information under the DSZA contract and alleged no Privacy Act language in the contract.
- Koch contended the SEC disclosed records to non-government contractors, prompting his objection and preference for internal or Privacy Act-compliant investigation.
- The SEC dismissed Koch’s EEO complaint for non-cooperation under 29 C.F.R. § 1614.107; EEOC affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Koch exhausts Rehabilitation Act remedies | Koch exhausted via good faith cooperation | Koch failed to exhaust by not cooperating, jurisdictional | Subject matter jurisdiction exists; non-exhaustion not jurisdictional; court may address merits |
| Whether DSZA contract falls under Privacy Act obligations | DSZA contract required Privacy Act language per 48 C.F.R. pt. 24 | DSZA contract not within 48 C.F.R. pt. 24; language ultimately included by reference | DSZA contract not covered by 48 C.F.R. pt. 24; Privacy Act language later incorporated by reference does not create coverage |
| Whether Counts Two, Three, and Five survive | Counts 2, 3, 5 claim misstatements or failures regarding Privacy Act obligations | No Privacy Act coverage; misdirection about obligations | Judgment for defendants on Counts 2, 3, and 5 |
| Whether Counts Four and Six remain after withdrawal | Counts Four and Six withdrawn | Motion moot as to those counts | Counts Four and Six withdrawn; moot to the extent challenged |
Key Cases Cited
- Spinelli v. Goss, 446 F.3d 159 (D.C. Cir. 2006) (exhaustion may be jurisdictional; futility not presumed)
- Perry v. U.S. Department of State, 669 F. Supp. 2d 60 (D.D.C. 2009) ( Spinelli's jurisdictional rule limited to no administrative complaint)
- Avocados Plus Inc. v. Veneman, 370 F.3d 1243 (D.C. Cir. 2004) (good faith exhaustion may be excused in discretion)
- Booth v. Churner, 532 U.S. 731 (S. Ct. 2001) (futility not read into statutory exhaustion requirements)
- Simpson v. Potter, 589 F. Supp. 2d 424 (D. Del. 2008) (missed prehearing conference distinguished from here)