The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
SAKEITHEA RODGERS, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-208(EGS)
)
THOMAS E. PEREZ, )
Secretary of Labor )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Sakeithea Rodgers (“Ms. Rodgers”) brings this
action against the United States Department of Labor (“DOL”)
alleging discrimination on the basis of sex and retaliation for
prior protected civil rights activity in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and
42 U.S.C. § 1981a. The DOL moves to dismiss Ms. Rodgers’s
complaint for failure to exhaust her administrative remedies.
Upon consideration of the motion, the response and reply
thereto, the applicable law, the entire record, and for the
reasons stated below, the DOL’s motion is DENIED.
I. BACKGROUND
A. Statuary Framework
The Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. §
1101 et seq., establishes a comprehensive framework for
evaluating employment actions taken against federal employees.
When a serious adverse personnel action, such as a discharge,
demotion, or reduction in pay, is taken against a federal
employee, the employee may appeal the adverse action to the
Merit Systems Protection Board (“MSPB” or “the Board”). 5 U.S.C.
§§ 7512, 7701. The MSPB is an independent adjudicator of federal
employment disputes. An appeal to the MSPB may allege that the
personnel action was impermissible solely as a matter of civil
service law, or the appeal may allege that the personnel action
was taken, in whole or in part, based on discrimination
prohibited by another federal statute, such as Title VII of the
Civil Rights Act. See 5 U.S.C. § 7702. These latter types of
actions are known as “mixed cases” because they allege
violations of both civil service law and civil rights law. See
29 C.F.R. § 1614.302.
A federal employee who seeks to file a mixed case has two
options to begin the grievance process: (1) file a
discrimination complaint with the agency through the agency’s
Equal Employment Opportunity (“EEO”) Office, or (2) file an
appeal directly with the MSPB. 29 C.F.R. 1614.302(a); 5 C.F.R.
1201.154(a). An employee cannot maintain the same action in both
forums; she must exhaust her administrative remedies in the
forum where her complaint or appeal was first filed. 29 C.F.R.
1614.302(b); Schlottman v. Perez, 739 F.3d 21, 22 (D.C. Cir.
2
2014). Where the employee pursues a mixed case complaint within
the agency, she may appeal an adverse agency decision to the
MSPB, or sue directly in federal district court. 5 C.F.R. §
1201.154(b); 29 C.F.R. § 1614.302(d)(1)(i). Where the employee
pursues a mixed case appeal with the MSPB, she may appeal an
adverse decision by filing suit in federal district court. 5
U.S.C. § 7703(b)(2). 1
B. Factual Background
On September 25, 2011, Ms. Rodgers was appointed as
Director of Human Resources at the Employment Training
Administration (“ETA”) of the Department of Labor (“DOL”).
Compl., Docket No. 1 at ¶ 9. When the DOL first offered Ms.
Rodgers the position, she was told she would be compensated at
the GS-15, Step 7 pay level. Id. at ¶ 7. Ms. Rodgers informed
the DOL that, based on her prior employment at the Federal
Deposit Insurance Company (“FDIC”), her proper salary level was
GS-15, Step 9. Id. at ¶ 8. The DOL then offered Ms. Rodgers the
position at the GS-15, Step 9 level, and Ms. Rodgers accepted.
Id. at ¶ 9.
In March of 2012, Ms. Rodgers informed her immediate
supervisor, Lisa Lahrman (“Ms. Lahrman”), that she was being
1 Ordinarily, an employee has the right to appeal an adverse MSPB
decision to the U.S. Court of Appeals for the Federal Circuit. 5
U.S.C. 7703(b)(1). “Mixed cases” are the exception to this
general rule. 5 U.S.C. 7703(b)(2).
3
sexually harassed by Jose Conejo (“Mr. Conejo”), one of Ms.
Rodgers’s subordinates. Id. at ¶ 11. According to the complaint,
Ms. Lahrman was unsympathetic and refused to take action. Id. In
April 2012, Ms. Rodgers attempted to report Mr. Conejo to the
DOL’s EEO Officer, but was told she could not file an EEO claim
because he was her subordinate. Id. Ms. Rodgers took no further
action until she was approached by three other women, two of
whom were Mr. Conejo’s subordinates, who reported that he had
been sexually harassing them as well. Id. at ¶ 12. Ms. Rodgers
again went to the EEO Office and reported Mr. Conejo’s conduct.
Id.
In October 2012, Ms. Rodgers began to prepare Mr. Conejo’s
performance evaluation. Id. at ¶ 13. Ms. Rodgers planned to note
his poor performance and harassing conduct on his evaluation,
but Ms. Lahrman refused to accept the evaluation and generally
dismissed Ms. Rodgers’s concerns. Id. In early November 2012,
Ms. Lahrman called Ms. Rodgers into her office and questioned
her about the starting salary she received upon entering the
DOL. Id. This was the first time anyone had questioned Ms.
Rodgers about her appropriate within-grade step since she
accepted the DOL’s employment offer more than a year earlier.
Id. Following the November 2012 meeting, Ms. Lahrman demanded a
review of Ms. Rodgers within-grade step. Id. at ¶ 14. Ms.
Lahrman retroactively downgraded Ms. Rodgers from a Step 9 to a
4
Step 6. Id. The agency then began to initiate an effort to
recover the purported overpayment. Id.
C. Procedural History
Ms. Rodgers filed a timely appeal of the step reduction to
the MSPB in March of 2013. Id. at ¶ 15. Ms. Rodgers initiated
the appeal by submitting an online form. Def.’s Mot. Dismiss,
Docket 19, Ex.1. She did not have counsel at the time she
completed the form. Pl.’s Mem. Opp. Def.’s Mot. Dismiss.
(“Pl.’s Mem. Opp.”), Docket No. 20 at 1. On the online form, Ms.
Rodgers checked the boxes for “harmful procedural error” and
“whistleblower,” but did not check the box for prohibited
discrimination. Def.’s Mot. Dismiss., Docket No. 19, Ex. 1 at 5.
On May 2, 2013, Ms. Rodgers, through counsel, filed a
motion to alter the hearing scheduled in her MSPB appeal. Def.’s
Mot. Dismiss, Docket No. 19, Ex. 3. The motion indicated that
Ms. Rodgers sought an extension of time “to allow for a
reasonable period of time for taking discovery and for amending
the claims to include retaliation under Title VII of the Civil
Rights Act, which claim was meant to be included in this appeal
(making it a “mixed case”). . . .”. Id. (parenthetical in
original). The motion further indicated that it was Ms.
Rodgers’s intention to claim that her reduction in pay was
motivated by her prior protected EEO activity – that is, her
reporting Mr. Conejo’s sexual harassment – but had mistakenly
5
checked “whistleblower” rather than “discrimination” believing
that it was the proper box for a retaliation claim. Id.
Mr. Rodgers never formally amended her MSPB appeal form.
Def.’s Mot. Dismiss, Docket 19 at 3. However, in an initial
telephone conference held before the MSPB Administrative Law
Judge (ALJ) on May 6, 2013, Ms. Rodgers informed the ALJ that
she was bringing a “mixed case” and that she wished to bring her
Title VII claims before the MSPB as well. Pl.’s Mem. Opp.,
Docket No. 20 at 4.
Ms. Rodgers then sought discovery from the DOL on both the
CSRA and Title VII issues. Pl.’s Mem. Op., Docket 20, Ex. 1 at
2. When the DOL failed to respond, Ms. Rodgers moved to compel.
Id. In her motion to compel, Ms. Rodgers reiterated her
intention to bring a mixed case appeal before the MSPB:
The result of this conference is that there
is no question that Ms. Rodgers’s appeal
presents a mixed case, and, therefore, she
is entitled to discovery on all issues
relevant to her appeal – both on the civil
service law merits and on discrimination and
retaliation claims.
Id. The ALJ granted in part, and denied in part, Ms. Rodgers’s
motion to compel. Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1-2. 2 In
2 Specifically, the ALJ ordered the DOL to respond to Ms.
Rodgers’s interrogatories and requests for production
immediately. Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1. The ALJ
granted Ms. Rodgers’s request to depose one DOL employee over
the DOL’s objection, but denied her request to depose numerous
others. Id.
6
her written decision ruling on the motion to compel, the ALJ
indicated that Ms. Rodgers raised “claims of discrimination and
retaliation for engaging in EEO activity in connection with her
reduction in pay.” Id. In spite of the ALJ’s order, the DOL
again failed to respond to Ms. Rodgers’s discovery requests, and
Ms. Rodgers moved for sanctions. Def.’s Mot. Dismiss, Docket No.
19, Ex 6 at 1-2.
The ALJ held another telephonic conference on September 9,
2013, at which time Ms. Rodgers withdrew her request for a
hearing and requested that, as a sanction for not responding to
her discovery requests, the record be closed immediately, before
the agency had an opportunity to present additional evidence or
argument. Id. The ALJ granted Ms. Rodgers’s motion for
sanctions, cancelled the hearing, and closed the record, noting
the DOL’s complete failure to engage in discovery:
At the appellant’s request, the record in
this matter is now closed, and I will issue
a decision based on the written record. As
a sanction for refusing to participate in
discovery, including failure to comply with
my order to compel, the agency will not be
permitted to submit additional evidence and
argument at this late date after failing to
respond to the appellant’s discovery
requests, notices of deposition, and
attempts to contact [counsel for DOL].
Id.
The ALJ proceeded to issue a decision on the pleadings
alone. Def.’s Mot. Dismiss, Docket No. 19, Ex. 7. In an Initial
7
Decision dated December 11, 2013, the ALJ reversed the DOL’s
decision to downgrade Ms. Rodgers’s pay. Id. In reaching this
decision, the ALJ noted that the DOL’s “lengthy delay in
correcting what it deemed [a] pay-setting error argues against
the propriety of the agency’s action here.” Id. The ALJ’s Order
required the DOL to cancel its “administrative correction” of
Ms. Rodgers’s pay grade and further ordered the DOL to pay Ms.
Rodgers any back pay due. Id. The ALJ’s Initial Decision was
entirely silent as to Ms. Rodgers’s Title VII claims. Neither
party filed a petition for review of the ALJ’s Initial Decision
and, in accordance with MSPB regulations, the Initial Decision
became the ALJ’s Final Decision on January 15, 2014. See 5
C.F.R. § 1201.113.
Ms. Rodgers filed a Title VII action in this Court on
February 12, 2014. Compl., Docket No. 1. Ms. Rodgers notes that
by reversing the reduction in her step and pay the MSPB provided
her “virtually all the equitable relief” to which she would be
entitled had she succeeded on her Title VII claims before the
Board. Id. However, she now seeks compensatory damages for the
“career damage done to her, as well as for the professional and
personal embarrassment and humiliation she was made to suffer”
as a result of the DOL’s Title VII violations. Id. As relief,
she requests a declaratory judgment finding that she was the
victim of intentional sex discrimination and retaliation in
8
violation of Title VII, compensatory damages in the amount
$300,000.00, attorney’s fees and costs, and injunctive relief.
Id.
The DOL moved to dismiss on January 23, 2015, arguing that
Ms. Rogers failed to administratively exhaust her Title VII
claims before the MSPB. Def.’s Mot. Dismiss, Docket No 19 at 1.
The DOL argues that (1) Ms. Rodgers failed to raise her
discrimination and retaliation claims before the MPSB; (2) even
if Ms. Rodgers raised Title VII claims before the MSPB, she
subsequently abandoned them; and (3) pursuant to the Supreme
Court’s decision in Kloeckner v. Solis, 133 S.Ct. 596 (2012),
the ALJ’s silence on the Title VII issue precludes Ms. Rodgers
from seeking review in this Court. Id.
II. STANDARD OF REVIEW
Defendant moves to dismiss Ms. Rodgers’s complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def.’s
Mot. Dismiss, Docket 20 at 1. In this district, motions to
dismiss for failure to exhaust administrative remedies under
Title VII are generally resolved as motions to dismiss for
failure to state a claim under Rule 12(b)(6). Augustus v. Locke,
699 F. Supp. 2d 65, 69 n.3 (D.D.C. 2010). Rule 12(b)(1) is
inapplicable because failure to exhaust administrative remedies
is not a jurisdictional bar to bringing suit under Title VII.
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997);
9
Marcelus v. Corr. Corp. of Am., 540 F. Supp. 2d 231, 234-35
(D.D.C. 2008). In this case, however, the Rule 12(b)(6) standard
is inappropriate because the Court must look outside the
pleadings to resolve the exhaustion issue. See Fed. R. Civ. P.
12(d) (“If, on a motion under Rule 12(b)(6) . . . , matters
outside the pleadings are presented and not excluded by the
court, the motion must be treated as one for summary judgment
under Rule 56.”). Accordingly, the Court will construe the
defendant’s motion as a motion for summary judgment.
Summary judgment is appropriate when the moving party has
shown that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). A material fact is one that is capable of affecting
the outcome of the litigation. Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986). A genuine issue is one where the “evidence
is such that a reasonable jury could return a verdict for the
non-moving party.” Id. A court considering a motion for summary
judgment must draw all “justifiable inferences” from the
evidence in favor of the nonmovant. Id. at 255. To survive a
motion for summary judgment, however, the nonmovant “must do
more than simply show that there is some metaphysical doubt as
to the material facts”; instead, the nonmoving party must come
10
forward with “specific facts showing that there is a genuine
issue for trial.” Matsushita Elec. Indus. Co. Ltd., v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed. R. Civ. P.
56(e)).
III. DISCUSSION
A. Ms. Rodgers Timely Raised her Title VII Claims Before
the MSPB
The DOL argues that Ms. Rodgers never properly brought a
mixed case before the MSPB: her original appeal form did not
indicate she was alleging a Title VII violation and Ms. Rodgers
never formally amended her appeal form. Def.’s Mot. Dismiss,
Docket No. 19 at 11. Ms. Rodgers argues that she successfully
brought a mixed case when she raised the Title VII claim in the
May 2013 telephonic conference before the ALJ. Pl.’s Mem. Opp.,
Docket No. 2 at 3. Further, Ms. Rodgers argues that the ALJ
recognized the appeal as a mixed case when she granted her
discovery on both the civil service law and civil rights law
issues. Id. at 4-5.
The Board’s regulations provide that “[a]n appellant may
raise a claim or defense not included in the appeal at any time
before the end of the conference(s) held to define the issues in
the case.” 5 C.F.R. § 1201.24(b). Ms. Rodgers informed the ALJ
she was bringing a mixed case during the May 6, 2013 telephone
conference. Pl.’s Mem. Opp., Docket 20 at 4. Ms. Rodger’s motion
11
to compel discovery before the ALJ summarizes the telephone
conference as follows:
On May 6, 2013, Administrative Judge Clement
held a telephonic conference with counsel
for [Ms. Rodgers] and the Agency wherein it
was clarified that this is a mixed case,
addressing both the merits of the employment
actions taken against Ms. Rodgers as well as
issues of unlawful employment discrimination
and retaliation.
Pl.’s Mem. Opp., Docket 20, Ex. 1 at 2. Indeed, in ruling on the
Motion to Compel, the ALJ granted Ms. Rodgers discovery on both
the civil service law and civil rights law issues, indicating
that Ms. Rodgers was “raising claims of discrimination and
retaliation for engaging in EEO activity in connection with the
reduction in her pay.” Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1.
By raising her Title VII claims in the May 6, 2013 conference to
define the issues, Ms. Rodgers timely brought a mixed case
appeal before the MSPB. Accordingly, the DOL’s first argument
must fail.
B. Ms. Rodgers Did Not Abandon Her Title VII Claims
Next, the DOL argues that even if Ms. Rodgers timely raised
a mixed case appeal, she abandoned her Title VII claims when she
(1) failed to formally amend her appeal; (2) filed a pre-hearing
submission characterizing the issue of the case as a civil
service law issue, rather than a civil rights issue; (3) closed
the record before submitting any evidence of discrimination; and
12
(4) failed to file a petition for review of the ALJ’s Initial
Decision. Def.’s Mot. Dismiss., Docket No. 19 at 11. Ms. Rodgers
counters that she never intended to abandon her Title VII
claims, and that any failure to pursue these claims on the
merits was solely the fault of the DOL. Pl.’s Mem. Opp., Docket
No. 20 at 3, 8.
When an employee “abandons” her claims during the
administrative proceedings, she has not exhausted those claims
for purposes of seeking review in federal court. Bush v.
Engleman, 266 F. Supp. 2d 97, 101 (D.D.C. 2003) (citing Greenlaw
v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995)). An employee
abandons her claim where she withdraws from the administrative
proceeding prior to its conclusion or expressly disclaims any
intention of pursuing the claims further. Bush, 266 F. Supp. 2d
at 101; Thurman v. Merit Sys. Prot. Bd., 566 F.App’x 957, 960
(Fed. Cir. 2014) (per curium); Meehan v. U.S. Postal Serv., 718
F.2d 1069, 1073-74 (Fed. Cir. 1983). Courts may also consider
claims abandoned where the employee has intentionally obstructed
the administrative process. See Vinieratos v. Dep’t of Air
Force, 939 F.2d 762, 770 (9th Cir. 1991).
The DOL points to four separate occasions where it argues
Ms. Rodgers abandoned her Title VII claims. Each will be
discussed in turn.
13
1. Ms. Rodgers’s Failure to Formally Amend her Appeal
Form
First, the DOL argues that Ms. Rodgers abandoned her claim
when she failed to formally amend her MSPB form. Def.’s Mot.
Dismiss, Docket No. 19 at 11. As discussed above, the
regulations provide that “[a]n appellant may raise a claim or
defense not included in the appeal at any time before the end of
the conference(s) held to define the issues in the case.” 5
C.F.R. § 1201.24(b). While formal amendment of the appeal never
occurred, Ms. Rodgers raised the Title VII issues in a telephone
conference before the ALJ on May 6, 2013. Pl.’s Mem. Opp.,
Docket No. 20 at 4. Accordingly, Ms. Rodgers did not abandon her
Title VII claims through her failure to formally amend her
appeal.
2. Ms. Rodgers’s Characterization of the Issues in her
Pre-Hearing Submission
Second, the DOL argues that Ms. Rodgers abandoned her Title
VII claims through the characterization of the “issue” of the
case in her pre-hearing submission before the MSPB. Def.’s Mot.
Dismiss, Docket 19 at 11. Specifically, in the submission, Ms.
Rodgers described the “issue” of the MSPB appeal as whether she
received the proper in-grade step upon entry to the DOL. Def.’s
Mot. Dismiss, Docket 19, Ex. 4 at 2. The DOL argues that by
framing the issue as a question of civil service law, rather
than a question of both civil service and civil rights law, Ms.
14
Rodgers abandoned her Title VII claims. Def.’s Mot. Dismiss,
Docket 19 at 11.
To bring a mixed-case appeal before the MSPB, the
regulations require that the employee allege the appealable
employment action took place, “in whole or in part,” based on
prohibited discrimination. 29 C.F.R. § 1614.302(a)(2). Ms.
Rodger’s pre-hearing submission to the ALJ includes allegations
that she “had reported that both she and other female employees
in her unit had suffered sexual harassment at the hands of Jose
Conjeo.” Def.’s Mot. Dismiss, Docket 19, Ex. 4 at 10. She
further alleges that soon after she reported this harassment to
Ms. Lahrman, Ms. Lahrman initiated a review of her salary. Id.
Moreover, the pre-hearing submission twice characterizes Ms.
Rodger’s MSPB Appeal as a “mixed case.” Id. at 13, 15. Far from
evidencing abandonment of her Title VII claims, by alleging
instances of discrimination and retaliation in connection with
her reduction in pay, Ms. Rodger’s pre-hearing submission is
wholly consistent with a mixed case appeal. Accordingly, Ms.
Rodgers did not abandon her Title VII claims through her pre-
hearing submission.
3. Ms. Rodgers Closed the Administrative Record Prior
to Submitting Evidence of Discrimination
Third, the DOL argues that Ms. Rodgers abandoned her Title
VII claim by closing the administrative record prior to
15
submitting any evidence of discrimination or retaliation.
Def.’s Mot. Dismiss, Docket No. 19 at 13. According to the DOL,
when the ALJ prevented the DOL from offering any additional
evidence as a sanction for their misconduct in discovery,
nothing prevented Ms. Rodgers from submitting her own affidavit
setting forth the allegedly discriminatory and retaliatory acts.
Id. While Ms. Rodgers does not address her failure to submit an
affidavit specifically, she argues that she was “stripped” of
her ability to have her Title VII claims heard on the merits “by
DOL’s unconscionable refusal to provide and allow discovery,
even when ordered to do so by the MSPB Administrative Judge.”
Pl.’s Mem. Opp., Docket No. 20 at 8. In support of this
argument, Ms. Rodgers cites to the ALJ’s decision granting her
counsel full attorney’s fees:
The agency argues that any fees charged in
connection with [Ms. Rodgers’s] EEO and
retaliation claims should be eliminated
because [Ms. Rodgers] did not prevail on
these claims in her appeal. Notably, the
agency avoids mention of the reason [Ms.
Rodgers] could not prevail on her claim of
discrimination and retaliation: she was
prevented from developing her claims by the
agency’s complete failure to participate in
the discovery process despite both her
counsel’s and my own interventions in his
regard. Because of the lack of discovery in
this matter, the appellant was forced to
withdraw her request for a hearing and
instead seek a decision on the written
record . . . I find that her inability to
develop these [Title VII] claims was solely
the fault of the agency, and I do not find
16
it reasonable to reduce her claim for fees
in connection with these issues in these
circumstances . . . it was evident from her
initial pleadings that she fully intended to
develop these claims had the agency provided
her with the discovery materials she needed.
Pl.’s Mem. Opp., Docket 20, Ex. 3 at 6. The DOL counters that
the ALJ’s statements are mere dicta and do not establish a basis
for allowing Ms. Rodgers to bring her Title VII claims in this
Court. Def.’s Mot. Dismiss, Docket No. 19 at 2.
Dicta or not, Ms. Rodgers was prevented from presenting
evidence on her Title VII claims before the ALJ due to the
agency’s “complete failure to participate in the discovery
process.” Pl.’s Mem. Opp., Docket 20 Ex. 3 at 6. Ms. Rodgers
never expressly disclaimed her intention of pursuing her Title
VII claims further, nor did she engage in misconduct with the
intention of obstructing the administrative process. It was the
DOL, and not Ms. Rodgers, who failed to meaningfully participate
in the administrative proceedings. Accordingly, Ms. Rodgers did
not abandon her Title VII claims by closing the administrative
record.
4. Ms. Rodgers Failed to Object to the ALJ’s Initial
Decision
Finally, the DOL argues that Ms. Rodgers abandoned her
Title VII claims when she failed to object to the ALJ’s Initial
Decision. Def.’s Mot. Dismiss, Docket No. 19 at 15. According to
the DOL, Ms. Rodgers should have filed a petition for review of
17
the ALJ’s decision, or alternatively, should have alerted the
ALJ that she overlooked the Title VII claims. Id. Ms. Rodgers
argues that after the DOL refused to provide her with discovery,
any attempt to appeal the ALJ’s decision would have been futile.
Pl.’s Mem. Opp., Docket No. 20 at 7.
Neither the statute nor accompanying regulations require
the employee to file a petition for review of the ALJ’s Initial
Decision prior to proceeding in federal court. The DOL seeks to
read in a requirement that is simply not there. Once again, the
DOL fails to demonstrate that Ms. Rodgers expressly disclaimed
her intention of pursuing her Title VII claims further or
engaged in misconduct with intent to obstruct the administrative
proceedings. Accordingly, Ms. Rodgers did not abandon her Title
VII claims at any point during the administrative proceedings.
C. The DOL’s Reading of Kloeckner v. Solis Is
Inconsistent with the CSRA
The DOL argues that, according to the Supreme Court’s
decision in Kloeckner v. Solis, 133 S.Ct. 596 (2012), the ALJ’s
silence on the Title VII claims precludes Ms. Rodgers from
seeking review of those claims in federal district court. Def.’s
Mot. Dismiss, Docket No. 19 at 9-10. 3 Ms. Rodgers argues that the
3
The DOL argues Ms. Rodgers has no recourse to address her Title
VII claims in any forum because she is also precluded from
having the claims heard by the DOL’s EEO office due to her
initial election to proceed before the MSPB. Def.’s Mot.
Dismiss, Docket No. 19 at 16, 17 (“there is no procedural avenue
18
DOL reads Kloeckner out of context and that the case did not
address the peculiar facts presented here. Pl.’s Mem. Opp.,
Docket No. 20 at 6.
In Kloeckner, the Supreme Court held that an employee who
brings a mixed case appeal before the MSPB should seek review of
an adverse MSPB decision in federal district court regardless of
whether the MSPB decided the case on the merits or dismissed the
case on procedural grounds. Kloeckner, 133 S.Ct. at 607.
Kloeckner resolved a circuit split: prior to the decision the
Eighth and Federal Circuits had held that jurisdiction in
federal district courts, as opposed to the Federal Circuit, was
only proper where the MSPB had decided the mixed case appeal on
the merits, and not where the MSPB had dismissed the case on
procedural grounds. See Kloeckner v. Solis, 639 F.3d 834 (8th
Cir. 2011) (opinion below); Ballentine v. Merit Sys. Prot. Bd.,
738 F.2d 1244 (Fed. Cir. 1984).
In Kloeckner, consistent with precedent from the Eighth and
Federal Circuits, the government argued that the phrase
“judicially reviewable action,” as it appears in the CSRA,
referred only to MSPB decisions on the merits. Kloeckner, 133
S.Ct. at 606. In rejecting this argument, the Supreme Court held
for pursuing [the Title VII] claims now”). See also 29 C.F.R.
1614.302(b).
19
that “[a]ll the phrase signifies is that the Board should
dispose of the issue in some way, whether by actually
adjudicating it or by holding that it was no properly raised.”
Id. The DOL argues that the Supreme Court’s statement should be
understood as a limiting principle in that while the MSPB may
hold on procedural or substantive grounds, the MSPB must
actually hold on the Title VII issue. Def.’s Mot. Dismiss,
Docket 19 at 9-10. Due to the ALJ’s silence on the Title VII
issue in this case, the DOL argues that Ms. Rogers may not
proceed to court. Id.
This argument fails. First, in Kloeckner, the Court was not
confronted with the peculiar facts of this case where, through
no fault of the employee, the ALJ did not rule on all issues
raised. Second, the statute does not require the MSPB to issue a
“judicially reviewable action” before the employee may proceed
in federal court. Indeed, the CSRA contains a “languishing
provision” which allows employees to proceed to court in cases
where an appeal has been pending for 120 days and the Board has
yet to issue a decision:
[I]f any time after . . . (B) the 120th day
following the filing of an appeal with the
Board under subsection (a)(1) of this
section, there is no judicially reviewable
action . . . an employee shall be entitled
to file a civil action to the same extent
and in the same manner as provided in
section 7171(c) of the Civil Rights Act of
1964.
20
5 U.S.C. § 7702(e)(1); see also Butler v. West, 164 F.3d 634, 638
(D.C. Cir. 2008). 4 Pursuant to the languishing provision, Title
VII cases may proceed to federal district court without the
agency ever issuing a decision. See e.g., Ikossi v. Dep’t of
Navy, 526 F.3d 1037, 1041 (D.C. Cir. 2008). Put another way, in
the Title VII context, there is no requirement that the district
court actually review the decision of the administrative entity.
Indeed, given that the district court reviews Title VII claims de
novo, there is no need for the MSPB to issue a written decision
prior to this Court hearing the claims. See 5 U.S.C. § 7703(c);
Robinson v. Duncan, 775 F. Supp. 2d 143, 157 (D.D.C. 2011). The
DOL’s reading of Kloeckner is unnecessarily restrictive and
inconsistent with the CSRA read as a whole. Accordingly, the
ALJ’s silence on the Title VII claims does not bar Ms. Rodgers
from proceeding in federal court.
D. The Equities Weigh in Favor of Finding Exhaustion
In addition to the legal arguments above, both sides raise
policy arguments in favor of their position. Ms. Rodgers argues
that the Court should not allow the DOL to benefit from their
misdeeds before the MSPB. Pl.’s Mem. Opp., Docket 20 at 8. The
4
As the Court described in Kloeckner, the provision is “designed
to save employees from being held in perpetual uncertainty by
Board inaction.” Kloecker, 133 S.Ct. at 606(internal quotation
marks omitted).
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DOL argues that allowing Ms. Rodgers to proceed here would be
sanctioning the DOL for conduct that the ALJ already sanctioned
below. Def.’s Rep. Pl.’s Mem. Opp., Docket No. 22 at 6.
“Exhaustion under Title VII, like other procedural devices,
should never be allowed to become so formidable a demand that it
obscures the clear congressional purpose of ‘rooting out . . .
every vestige of employment discrimination within the federal
government.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985)
(internal citations omitted). Further, a plaintiff may be
“excused from exhaustion when there are equitable reasons for
doing so.” Broom v. Caldera, 129 F. Supp. 2d 25, 29 (2001). One
such “equitable reason” may be bad faith or misconduct on the
part of the agency. Berry v. Abdnor, 1989 WL 46761, at *2
(D.D.C. April 20, 1989). Finally, a plaintiff should not be
deprived of judicial review based on failure to follow
procedural technicalities of the exhaustion requirement, so long
as the defendant has been “put on notice” of plaintiff’s claims.
President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980).
The equities weigh in favor of finding exhaustion here. The
DOL’s own misconduct in discovery before the administrative
tribunal prevented Ms. Rodgers from having her Title VII claim
adjudicated on the merits. The DOL will not be allowed to
benefit from this misconduct now. While administrative
exhaustion may, in many circumstances, serve the interests of
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judicial economy, the interests of justice are not served where
the DOL fails to participate in the administrative proceedings
only to later argue that the plaintiff may not proceed in
federal court. Title VII cannot serve its purposes when the
plaintiff is prevented from taking discovery on her claims.
Accordingly, Ms. Rodgers will be permitted to proceed in this
Court.
IV. CONCLUSION
For the reasons stated above, the DOL’s motion to dismiss
Ms. Rodgers complaint, construed as a motion for summary
judgment, is DENIED. An appropriate order accompanies this
Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
September 29, 2015
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