Koch v. Walter, 935 F. Supp. 2d 143

Koch, a white Jewish male, worked as a SEC financial analyst from 1991 to 2008 and alleges discrimination based on protected statuses under the Rehabilitation Act, the ADEA, and Title VII, including claimed disabilities.
He contends SEC managers subjected him to a 'curfew' and a formal reprimand in 1999, plus other acts, contributing to a hostile work environment.
The court in 2010 narrowed the case to two remaining claims: discriminatory/retaliatory actions related to the curfew and the reprimand; exhaustion remained an issue.
Koch asserts that he sought EEO counseling beginning fall 1999; counseling availability was repeatedly impeded, with counselors becoming available only in 2000.
SEC argues Koch failed to timely initiate contact within 45 days under 29 C.F.R. § 1614.105(a)(1) and, later, that Koch refused to cooperate in counseling, constituting nonexhaustion.
The court grants summary judgment for the SEC, holding that Koch failed to exhaust his Rehabilitation Act claims due to noncooperation in the counseling process; ADEA/Title VII exhaustion is not jurisdictional and not excused here.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of initiating counseling under §1614.105(a)(1)	Koch initiated contact within the 45-day window by contacting EEO personnel in fall 1999 and thereafter.	Initial contact occurred no earlier than October 3, 2000, after the June 1, 2000 counselor assignment; thus late.	Koch timely initiated contact; however, the court ultimately resolves other exhaustion issues.
Failure to cooperate in counseling as exhaustion	Koch attempted to engage in counseling and provided information when able.	Koch refused to provide a list of issues/incidents and detailed information, blocking the counseling process.	Koch's refusal to provide information constituted failure to exhaust under §1614.105(a)(1).
Exhaustion of ADEA/Title VII claims	Exhaustion should be considered valid under non-jurisdictional defense principles.	No good faith basis shown to excuse nonexhaustion.	No equitable basis to excuse nonexhaustion for ADEA/Title VII.

Spinelli v. Goss, 446 F.3d 159 (D.C. Cir. 2006) (exhaustion as jurisdictional for Rehabilitation Act claims; timing expectations)
Moore v. Schafer, 573 F. Supp. 2d 216 (D.D.C. 2008) (exhaustion considerations and administrative remedies)
Artis v. Greenspan, 158 F.3d 1301 (D.C. Cir. 1998) (counseling purpose; need for information enabling investigation)
Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011) (counseling requirements; information adequacy during counseling)
Lloyd v. Chao, 240 F. Supp. 2d 1 (D.D.C. 2002) (timeliness and initiation of contact in EEO process)
Morris v. Jackson, 842 F. Supp. 2d 171 (D.D.C. 2012) (initiation of contact within 45 days suffices)
Boone v. Clinton, 675 F. Supp. 2d 137 (D.D.C. 2009) (timing and initiation of counseling approaches)
Avocados Plus Inc. v. Veneman, 370 F.3d 1247 (D.C. Cir. 2004) (equitable excuses to exhaustion in some contexts)
Bell v. Donley, 724 F. Supp. 2d 1 (D.D.C. 2010) (cooperation and exhaustion in administrative processes)