Koch v. WalterKoch v. Walter
- Reporters:
- ,
- Before:
- Paul L. Friedman
This matter is before the Court on defendant‘s motion to dismiss pursuant to
Randolph Koch worked as a financial analyst at the SEC between December 1991 and October 2009. Compl. ¶¶ 4, 8. Mr. Koch is a white, Jewish male over the age of forty, and he asserts that he suffers from a variety of disabling medical conditions. Id. ¶ 6. Based on these protected statuses, Koch has initiated various administrative and civil proceedings against the SEC and other government agencies for alleged violations of the Rehabilitation Act, the Age Discrimination in Employment Aсt (“ADEA“), and Title VII of the Civil Rights Act of 1964. Id. ¶ 7; see also Koch v. Holder, --- F. Supp. 2d ----, 2013 WL 953368 (D.D.C. Mar. 13, 2013); Koch v. Schapiro, 759 F. Supp. 2d 67 (D.D.C. 2011); Koch v. Schapiro, 699 F. Supp. 2d 3 (D.D.C. 2010); Koch v. Donaldson, 260 F. Supp. 2d 86 (D.D.C. 2003). The present action arises from the SEC‘s alleged retaliation against Mr. Koch for his participation in these various proceedings, as well as the SEC‘s alleged violations of the Rehabilitation Act‘s confidentiality provisions.
In November 2008, Mr. Koch learned that the SEC‘s Office of the Inspector General (“OIG“) had initiated an investigation into his time and attendance habits. Compl. ¶ 28. Convinced that this investigation was undertaken in violation of federal employment discrimination laws, Mr. Koch contаcted an Equal Employment Opportunity (“EEO“) counselor. Counseling proved unfruitful, however, and on May 1, 2009, he filed a formal complaint with the SEC‘s EEO Office. See Admin. Compl.; Def.‘s Stmt. Mat. Facts ¶¶ 5, 12-14; Pl.‘s Stmt.
On January 26, 2010, Mr. Koch filed this civil action, naming as the defendant the Chairman of the SEC in her official capacity. In this action, Mr. Koch asserts that the OIG investigation was carried out “in retaliation for past and then-protected activity, namely, Plaintiff‘s equal employment оpportunity complaints and litigation.” Compl. ¶ 40; see also id. ¶¶ 7, 28, 35, 41-42. Mr. Koch further alleges that the OIG improperly reviewed his medical records, in violation of the confidentiality provisions of the Rehabilitation Act. Id. ¶¶ 38, 44-46.
The SEC has moved to dismiss Mr. Koch‘s claims pursuant to
The SEC argues thаt Mr. Koch‘s claim of violations of the Rehabilitation Act‘s confidentiality provisions also should be dismissed. First, it asserts that the specific claims made by Mr. Koch were never raised in his administrative complaint and therefore must be dismissed
While Mr. Koch is proceeding pro se in this case, the Court notes that he is a lawyer, see Pl.‘s Opр. at 18, and is an active litigant who has considerable experience pursuing employment discrimination matters. Nevertheless, the Court reviews his filings under “less stringent standards than formal pleadings [or legal briefs] drafted by lawyers.” Chandler v. W.E. Welch & Associates, Inc., 533 F. Supp. 2d 94, 102 (D.D.C. 2008) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Federal employees must exhaust their administrative remedies before filing suit under Title VII, the Rehabilitation Act, or the ADEA. See
A district court may review only claims that are “like or reasonably related to the allegations of the [administrative] charge and growing out of such allegations.” Park v. Howard, 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). In order for a claim to be considered “reasonably related” to a claim contained in the administrative complaint, it “must arise from the administrative investigation that can reasonably be expected to follow the charge of discrimination.” Payne v. Salazar, 619 F.3d at 65 n.9 (quoting Park v. Howard, 71 F.3d at 907). This requirement ensures that the agency is afforded “an opportunity to resolve [the] claim administratively before [the employee] file[s] her complaint in district court.” Id. at 65 (alterations in original) (quoting Wiley v. Glassman, 511 F.3d 141, 160 (D.C. Cir. 2007)). “[T]he goals behind the requirement of prior resort to administrative relief would be frustrated if the filing of a general charge with the EEOC would open up the possibility of judicial challenges to any related conduct that took place in connection with the employment relationship.” Park v. Howard, 71 F.3d at 908 (alteration in original) (quoting Rush v. McDonald‘s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)); see also
Exhaustion of administrative remedies is a jurisdictional requirement for claims arising under the Rehabilitation Act. See Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006); Moore v. Schafer, 573 F. Supp. 2d 216, 219 & n.4 (D.D.C. 2008). Therefore, under the Rehabilitation Act, it is Mr. Koch‘s burden to show that he has exhausted his claims administratively before filing suit. In contrast, failure to exhaust administrative remedies under the ADEA and Title VII is an affirmative defense, not a jurisdictional rеquirement. See Koch v. Schapiro, 699 F. Supp. 2d at 12; Pearsall v. Holder, 610 F. Supp. 2d 87, 95 (D.D.C. 2009). Accordingly, it is the SEC‘s burden to show that Mr. Koch did not exhaust his remedies for the claims brought under those statutes. See Porter v. Jackson, 668 F. Supp. 2d 222, 230 n.6 (D.D.C. 2009); Singleton v. Potter, 402 F. Supp. 2d 12, 33 (D.D.C. 2005).
It follows from this that jurisdictional exhaustion under the Rehabilitation Act is evaluated under
On a
As the Court relies only on the pleadings and Mr. Koch‘s administrative complaint to resolve issues relating to non-jurisdictional exhaustion under Title VII and the ADEA, it analyzes that issue under
III. MR. KOCH‘S RETALIATION CLAIMS UNDER TITLE VII AND THE ADEA
The SEC asserts that Mr. Koch failed to raise any claims under Title VII or the ADEA in his administrative complaint, either claims of discrimination or claims of retaliation; thus, his claims under these statutes must be dismissed for failure to exhaust. Mr. Koch counters that “[t]he [administrаtive] complaint as drafted was replete with substantial detail about the individuals responsible for the retaliation and discrimination, their retaliatory and discriminatory activity, and the connection to Mr. Koch‘s protected status and activities.” Pl.‘s Opp. at 9-10. Despite this assertion, however, a review of the complaint that Mr. Koch filed with the SEC‘s EEO Office reveals a complete failure to mention his age, race, or sex. Nor does it allege, directly or indirectly, discrimination or retaliation relating to these protected statuses. The administrative complaint instead focuses squarely on Koch‘s protected status as a disabled person.
Moreover, Mr. Koch does not suggest that he made any attempt to amend his administrative complaint to include claims of retaliation under Title VII or the ADEA. His
As Mr. Koch notes, the basic demand of the administrative exhaustion requirement “is that the agency be given sufficient, even if technically flawed, notice of the grievance.” Pl.‘s Opp. at 13 (citing Bethel v. Jefferson, 589 F.2d 631, 644 (D.C. Cir. 1978)). Koch has failed to meet that demand with regard to his claim that he was subject to retaliation prohibited by Title VII and/or the ADEA. A court does not treаt ideologically distinct categories of discrimination and retaliation as related “simply because they arise out of the same incident.” Bell v. Donley, 724 F. Supp. 2d 1, 9 (D.D.C. 2010); see also Brown v. District of Columbia, 251 F. Supp. 2d 152, 161-62 (D.D.C. 2003) (dismissing plaintiff‘s gender discrimination and retaliation claims, where administrative complaint alleged only race and disability discrimination). Because Mr. Koch‘s administrative complaint completely fails to mention protected activities under Title VII or the ADEA, and because Mr. Koch provides no plausible argument or evidence that the SEC should have considered the issue, the Court agrees that Mr. Koch has failed to exhaust his administrative remedies with respect to his Title VII and ADEA claims. Accordingly, it will grant the SEC‘s motion to dismiss as to those claims.
IV. MR. KOCH‘S RETALIATION CLAIM UNDER THE REHABILITATION ACT
The SEC maintains that allegations of retaliation appear nowhere on the face of Mr. Koch‘s administrative complaint, and that they are not “like or reasonably related” to the
Mr. Koch concedes that he did not use the word retaliation in his administrative complaint. He asserts, however, that he presented sufficient facts to establish that his administrative complaint “was substantially one for retaliation,” such that the SEC‘s EEO Office was put on notice of his retaliation claim, Pl.‘s Stmt. Mat. Facts ¶ 5, and that the retaliation claim “is reasonably related to” the claims in the administrative complaint. Id. ¶ 6; Pl.‘s Opp. at 8. Mr. Koch also argues that the SEC received adequate notice of this claim because he raised thе issue of retaliation to an EEO counselor during the administrative process. Pl.‘s Opp. at 4-5; Pl.‘s Stmt. Mat. Facts ¶¶ 1-2; 7-9. The Court disagrees.
Mr. Koch‘s administrative complaint focused primarily on issues relating to the use of his medical records. He devoted, however, three paragraphs to the OIG‘s decision to initiate an investigation into his time and attendance habits, which he referred to as “discriminatory and illegal.” See Admin. Compl. at 2-3. In Mr. Koch‘s view, the investigation was launched against him because he was disabled. As Koch asserted in his administrative complаint:
While the Inspector General might argue that his office legitimately investigated what it believed to be time and attendance violations, it probably sought to justify the imposition of discipline, including possible criminal sanctions, on conduct which was caused by a disability. Because the SEC has repeatedly refused my many reasonable accommodation requests relating to time and attendance, and because any purported time and attendance violations are the result of disabilities, the actions by the Inspector General violate the Rehabilitation Act.
Admin. Comp. at 2-3.
Only once did Mr. Koch mention filing administrative and civil cases, the protected activity at issue in this civil action. In a footnote at the end of his administrative complaint, Mr. Koch accused the OIG of building its investigation on testimony of individuals who, according to Koch, committed perjury in related litigation. He concluded that footnote by asserting that the Inspector General “apparently embarked on this investigation to further the General Counsel‘s goals” in those related proceedings. Admin. Comрl. at 3, n. 2.
This footnote is insufficient to put the SEC on notice that Koch was claiming retaliation. Certainly, “the law does not hold an employee to the use of magic words to make out a proper . . . charge.” Johnson-Parks v. D.C. Chartered Health Plan, 806 F. Supp. 2d 267, 270 (D.D.C. 2011) (quoting Maryland v. Sodexho, Inc., 474 F. Supp. 2d 160, 162 (D.D.C. 2007)); see also Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 76 (D.D.C. 2009) (finding employee who did not specifically mention “retaliation” in charge nevertheless exhausted her retaliation claim by alleging in charge that she was terminated two days after engaging in protected activity). But the employee must “alert the EEOC and the charged employer with the nature of the alleged wrongdoing.” Maryland v. Sodexho, Inc., 474 F. Supp. 2d at 162. In the context of Mr. Koch‘s complaint, which focuses exclusively on the discriminatory nature of the
Moreover, Mr. Koch‘s argument that his retaliation claim is “reasonably related” to his discrimination claim is without support. Although his discrimination and retaliation claims both arise out of the OIG investigation, that is not enough. See Bell v. Donley, 724 F. Supp. 2d at 9. The “theories of discrimination in [a] plaintiff‘s lawsuit are limited to the theories containеd in the [administrative EEO complaint] he filed.” Ponce v. Billington, 652 F. Supp. 2d 71, 74 (D.D.C. 2009) (alterations in original) (quoting Marcelus v. Corrections Corp. of America, 540 F. Supp. 2d 231, 236 (D.D.C. 2008)). Thus, a discrimination claim is not “reasonably related” to a claim of retaliation for purposes of administrative exhaustion. Bell v. Donley, 724 F. Supp. 2d at 9 (“[A] long line of cases prohibits plaintiffs from ‘conflating ideologically distinct categories of discrimination for purposes of meeting their exhaustion requirements.‘“) (collecting cases); Ndondji v. Interpark Inc., 768 F. Supp. 2d 263, 279 (D.D.C. 2001) (“[R]aising discrimination claims before the EEOC is not sufficient to warrant adding retaliation claims later in a Title VII suit.“). Based on the administrative complaint filed by Mr. Koch, and its focus on the allegеdly discriminatory nature of the OIG investigation, it does not seem reasonable to expect that the EEO Office would have examined how the OIG‘s activities might have constituted retaliation.
Mr. Koch asserts, however, that he raised the issue of retaliation in conversations and email correspondence with SEC EEO staff during the administrative process. Pl.‘s Opp. at 4-5; Pl.‘s Stmt. Mat. Facts ¶¶ 1-2; 7-9. His only support for this assertion is a single email, dated August 24, 2009, submitted in connection with his motion for discovery under
Under the D.C. Circuit‘s approach in Park and its progeny, a complainant must be specific enough in what claims he is making and the scope of those claims to put the agency on notice of what it must address in resolving the matter. See Park v. Howard University, 71 F.3d at 907 (“the requirement of some specificity in a charge is not a ‘mere technicаlity.‘“); Payne v. Salazar, 619 F.3d at 65 (agency must be given “an opportunity to resolve [the] claim administratively before [the employee] file[s] her complaint in district court.“). In the absence of such specificity, there can be no exhaustion of administrative remedies. See Marshall v. Fed. Express Corp., 130 F.3d at 1098 (“A vague or circumscribed EEOC charge will not satisfy the exhaustion requirement for claims it does not fairly embrace.“). The Court will grant the SEC‘s motion with respect to Mr. Koch‘s retaliation claim under the Rehabilitation Act.
A. Exhaustion of Claim Under Rehabilitation Act‘s Confidentiality Provisions
In addition to prohibiting discrimination and retaliation in connection with an employee‘s disabilities, the Rehabilitation Act provides protections against the unauthorized disclosure of an employee‘s medical information. Among these protections, the Act prohibits employers from inquiring into employees’ medical conditions, although an exception is made for “inquiries into the ability of an employee to perform job-related functions.”
In his administrative complaint, Mr. Koch devoted several paragraphs to a claim that his supervisor violated the Rehabilitation Act‘s confidentiality provisions by demanding medical documentation to support Koch‘s request for reasonable accommodations. Admin. Compl. at 1-2. Mr. Koch does not raise this claim in thе present action. Mr. Koch also presented a second claim: that the OIG “was probably reviewing medical information related to an accommodation I had received from the agency.” Id. at 2. Koch asserted that “if the OIG reviewed any records relating to my accommodation, it likely violated the below-described provision of the ADA, applicable to the agency under the Rehabilitation Act.” Id.
On May 28, 2009, the agency dismissed this second claim pursuant to
In his civil complaint filed in this Court, Mr. Koch abandons his claim regarding an improper inquiry by his supervisor, but he renews his claim that the OIG unlawfully reviewed his medical records. In contrast to his administrative complaint, he supports this claim against the OIG with references to two particular instances. First, he claims that the OIG unlawfully took testimony about his medical condition from SEC personnel; second, he asserts that the OIG improperly reviewed emails that contained his medical information. See Compl. ¶¶ 38, 44-45.
The SEC suggests that Mr. Koch should be bound by the charge accepted for investigation, which was developed by the agency after consulting with Koсh. See Def.‘s Mot. at 5. When determining whether a federal employee has exhausted his remedies, however, a court does not confine its review to the claims accepted for processing by the agency, but instead should look also to the plaintiff‘s original administrative complaint - unless, of course, the plaintiff affirmatively abandons or withdraws a claim. See Wiley v. Glassman, 511 F.3d at 160. Here, Koch‘s administrative complaint clearly alleges, albeit with less specificity, that the OIG improperly reviewed his medical information. The agency considered and dismissed this allegation. The Court therefore finds that Mr. Koch exhausted his administrative remedies as to his confidentiality claim.
The SEC asserts that Mr. Koch‘s claim of confidentiality violations under the Rehabilitation Act should be dismissed pursuant to
The SEC correctly notes that, in order to state a claim under the Rehabilitation Aсt‘s confidentiality provisions,
Other courts of appeals have addressed the question whether a plaintiff has a cause of action for a violation of § 12112(d) without demonstrating the existence of an injury-in-fact, either through actual damage (emotional, pecuniary, or otherwise), or through the presence of a continuing illegal practice to which plaintiff is likely to be subject absent court intervention. All have conсluded that a violation of § 12112(d), without such a showing, presents no “injury” capable of remedy, and thus affords no basis for suit.
Tice v. Centre Area Transp. Auth., 247 F.3d 506, 519-20 (3d Cir. 2001) (collecting cases); see also McPherson v. O‘Reilly Auto., Inc., 491 F.3d 726, 732 (8th Cir. 2007) (plaintiff “must show . . . that the disclosed information was confidential and that he suffered some kind of tangible injury as a result of the disclosure“); Giaccio v. City of New York, 502 F. Supp. 2d 380, 386-87 (S.D.N.Y. 2007) (“A technical violation of section 12112(d) will not in and of itself give rise to damages liability.“); cf. E.E.O.C. v. Ford Motor Credit Co., 531 F. Supp. 2d 930, 941 (M.D. Tenn. 2008) (holding that “shame, embarrassment and depression” suffered by employee as a
Mr. Koch‘s civil complaint lacks any such allegation of a cognizable injury. Mr. Koch does not assert that he suffered any harm - emotional, financial, or otherwise - as a result of the alleged disclosure of his medical information to the OIG. Without such an allegation, it is impossible to determine what type of relief, if any, would be appropriate. Accordingly, the Court will dismiss plaintiff‘s second claim for violations of the Rehabilitation Act‘s confidentiality provisions.
VI. CONCLUSION
For the reasons set forth above, the Court will grant in part and deny in part the SEC‘s motion. The Court will grant the SEC‘s motion tо dismiss Mr. Koch‘s Title VII and ADEA claims of retaliation pursuant to
An Order consistent with this Opinion will issue this same day.
/s/_____________________
PAUL L. FRIEDMAN
United States District Judge
DATE: March 30, 2013