UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) VENKAREDDY CHENNAREDDY, ) et al., ) Plaintiffs, ) ) v. ) Civ. Action No. 87-3538 (EGS) ) GENE DODARO,1 Acting ) Comptroller General, ) ) Defendant. ) _____________________________ ) ) VENKAREDDY CHENNAREDDY, ) ) Plaintiff, ) ) v. ) Civ. Action No. 01-0517 (EGS) ) GENE DODARO, Acting ) Comptroller General, ) ) Defendant. ) _____________________________ ) ) ARTHUR L. DAVIS, et al., ) ) Plaintiffs, ) ) v. ) Civ. Action No. 06-1002 (EGS) ) GENE DODARO, Acting ) Comptroller General, and ) MARY E. LEARY,2 Chair, ) Personnel Appeals Board, ) ) Defendants. ) _____________________________ )

1 Pursuant to Federal Rule of Civil Procedure 25(d), Mr. Dodaro, in his official capacity as Acting Comptroller General of the United States, is automatically substituted as the named defendant. 2 Pursuant to Federal Rule of Civil Procedure 25(d), Ms. Leary, in her official capacity as Chair of the Personnel Appeals Board, is automatically substituted as the named defendant. ______________________________ ) JAMES D. MOSES, ) ) Plaintiff, ) ) v. ) Civ. Action No. 06-1712 (EGS) ) GENE DODARO, Acting ) Comptroller General, and ) MARY E. LEARY, Chair, ) Personnel Appeals Board, ) ) Defendants. ) _____________________________ )

MEMORANDUM OPINION

Pending before the Court3 are the above-captioned four

employment discrimination actions against the Government

Accountability Office (“GAO” or the “agency”).4 With the

exception of one plaintiff, who is still employed by the GAO,

plaintiffs in these actions are all former employees of the

agency. Throughout the lengthy litigation of these cases,

plaintiffs have essentially treated these actions as if they are

one unitary case, relying on many of the same factual allegations

and legal theories in each of the cases. As a result, and in the

interest of judicial economy, this Memorandum Opinion will

3 These cases were randomly reassigned to this Court in November 2007 upon the death of the Honorable John G. Penn. Unless otherwise noted, this Memorandum Opinion will not distinguish between actions taken by Judge Penn and this Court. 4 The GAO “is a legislative support agency responsible for auditing, investigating, reporting on and proposing improvements to the programs and financial activities of executive agencies in the federal government.” Gen. Accounting Office v. Gen. Accounting Office Personnel Appeals Bd.,

(D.C. Cir. 1983).

2 address and resolve the issues pending before the Court in all of

the pending actions. In so doing, however, the Court emphasizes

that these cases have not been consolidated for any purpose.

This Memorandum Opinion, moreover, should in no way leave the

parties with the impression that the Court views these cases as

inextricably related. To the contrary, the discussion below

should make clear why – aside from the fact that some of the

cases involve overlapping plaintiffs and all of the cases include

allegations of age discrimination against the GAO – each case

involves separate issues that must be addressed individually.

I. Overview

Each of the cases pending before the Court has a long,

complicated history largely characterized by undue delay owing to

a variety of factors. The background information set forth below

will be far from comprehensive, and will include an overview of

each case only insofar as is necessary to provide sufficient

information for a discussion and resolution of the issues

currently before the Court.5

5 Upon reassignment of these cases to this Court in the fall of 2007, and in the interest of preserving both the parties’ rights and judicial economy, and without objection from anyone, all pending motions were denied without prejudice or as moot. This Court subsequently referred all of the cases to a magistrate judge for a report and recommendation on dispositive motions. The following discussion will include a brief explanation of how the cases have progressed since that time.

3 A. Chennareddy et al., Civil Action No. 87-3538

The original complaint in this case (“Chennareddy I”) was

filed in December 1987 by then GAO employee Venkareddy

Chennareddy (“Chennareddy”)6 as a general class complainant, in

addition to Sandra Thiabault, Roger Carroll, Hector Rojas, and

“an unnamed GS-15 Employee of the United States General

Accounting Office Representing Himself and All Other GS-15’s

[sic] Similarly Situated” as “Sub-Class Complainants.”

Plaintiffs sought to represent a class of GAO employees who had

been discriminated against in violation of the Age Discrimination

in Employment Act of 1967 (“ADEA”),

et seq. In

March 1989, after this case was consolidated with another action

involving the same allegations and many of the same plaintiffs,

the Court (1) struck the unnamed plaintiffs from the complaint,

and (2) dismissed the actions for failure to exhaust

administrative remedies.7 Chennareddy appealed, and the D.C.

Circuit held that exhaustion was not required “under GAO

regulations governing ADEA claims at the time Chennareddy brought

his claim in the District Court.” Chennareddy v. Bowsher,

(D.C. Cir. 1991).

6 Chennareddy, who was the last of the Chennareddy I plaintiffs to separate from the GAO, left his employment on January 3, 2006. (He claims that he was constructively discharged because of his age.) 7 During this time frame, the Court also granted in part and denied in part a motion to intervene. The result of this and other rulings is that there are now twelve named plaintiffs in this action.

4 In the years following remand from the D.C. Circuit, the

parties engaged in a lengthy period of class discovery, followed

by the filing of a second amended complaint. On September 16,

1993, Plaintiffs filed a motion to certify a class pursuant to

Federal Rule of Civil Procedure 23. That motion defined the

class as follows:

Every person who was employed by the United States General Accounting Office during all or part of the time period beginning September 17, 1983 to date who:

1. was classified as an evaluator or evaluator related professional person, GS-12 through GS-15 (or equivalent)8 during any part of that time; and

2. had reached the age of 40 before or during that time.

Chennareddy I, Docket No. 155. According to plaintiffs, the

class would be comprised of more than 1,500 individuals. See

Chennareddy I, Docket No. 155.

On March 20, 1995, the Court denied plaintiffs’ motion for

class certification. See Mem. Order, Chennareddy I, Docket No.

202 (“Class Cert. Order”). The Court concluded that although

plaintiffs met the “numerosity” requirement of Federal Rule of

Civil Procedure 23(a) (i.e., the number of potential plaintiffs

would make joinder impractical), plaintiffs were unable to meet

8 As the Court explained in its March 20, 1995 Memorandum Order, in 1989 the GAO converted from a “GS” to a “band” system for the relevant positions. This switch resulted in GS-12 employees becoming part of Band 1; GS-13 and -14 employees becoming part of Band 2; and GS-15 employees becoming part of Band 3. See Mem. Order at 2 n.1, Chennareddy I, Docket No. 202.

5 the remaining requirements of the Rule. See Class Cert. Order at

3-4. As the Court explained, plaintiffs had not demonstrated

either that there were legal or factual issues common to all

class members’ claims, or that the class representatives’ claims

were typical of the class members’ claims. Specifically, the

Court noted that plaintiffs had failed to adduce evidence showing

that the alleged discrimination “manifested itself in a

particular employment practice leveled against all members of the

proposed class.” Class Cert. Order at 4 (emphasis in original)

(citing Gen. Tel. Co. of Sw. v. Falcon,

, 159 n.15

(1982) (“Title VII prohibits discriminatory employment practices,

not an abstract policy of discrimination.”)); see also Class

Cert. Order at 7 (“[P]laintiffs provide no basis for concluding

that 1,500 employees suffer from a common discriminatory

practice.”).

The Court further concluded that certification was improper

because plaintiffs had not shown that they could “‘fairly and

adequately protect the interests of the class.’” Class Cert.

Order at 9 (quoting Fed. R. Civ. P. 23(a)(4)). In this regard,

the Court found that a “direct intra-class conflict” existed

among members of the class, because “a class comprised of GS-12,

-13, -14, and -15 level employees would place some class members

in the awkward position of challenging other members who

participated in the promotion process.” Class Cert. Order at 10.

6 Finally, the Court recognized that it had the authority to narrow

the class, divide it into subclasses, or permit potential class

members to opt out of the class. Class Cert. Order at 11. The

Court declined to do so, however, because such measures “would

not cure the defects in this case. Plaintiffs would still have

failed to identify a discriminatory practice or policy affecting

promotion decisions at the GAO.” Class Cert. Order at 11.

In response to this ruling, plaintiffs filed motions to

alter the class-certification judgment, for an evidentiary

hearing, for leave to expand discovery, and for various forms of

emergency injunctive relief. Those motions were all denied by

the Court without reaching the merits of the arguments raised

therein. In April and May 2000, plaintiffs filed a new round of

motions, including a (1) motion for leave to file a third amended

complaint, which included a request to add the GAO’s Personnel

Appeals Board (“PAB”) as a defendant; (2) renewed motion for

class certification; (3) motion to add three new party

intervenors;9 (4) motion for reconsideration of all pending

motions; (5) motion for partial summary judgment; and (6) motion

for a preliminary injunction.

At a status hearing on March 10, 2005 (before the merits of

any of the pending motions had been addressed by the Court),

9 Those purported intervenors were Arthur L. Davis, Jimmie Gilbert, and James D. Moses, plaintiffs in Civil Action No. 06-1002. (Moses is also the plaintiff in Civil Action No. 06-1712.)

7 plaintiffs sought “additional limited discovery which they

believe may impact the pending motions in this case.” Order,

Chennareddy I, Docket No. 330 (Mar. 14, 2005). Their subsequent

motion for discovery, filed at the Court’s order, addressed

plaintiffs’ discovery of the existence of “GAO computerized data

files recording essentially all of the information relevant to

Plaintiff’s [sic] claims. That system is maintained by Robert

Mowbray, Director of the Statistical Applications Software

department.” Pls.’ Motion for Additional Disc. at 3, Chennareddy

I, Docket No. 332. Plaintiffs argued that the agency had falsely

represented that no such data existed, and additional discovery

related to the “data system” would support plaintiffs’ pending

motions. Pls.’ Motion for Additional Disc. at 7, Chennareddy I,

Docket No. 332. Specifically, plaintiffs claimed that the

additional discovery would support both plaintiffs’ request for

class certification and amendment of the complaint to include the

PAB. Pls.’ Motion for Additional Disc. at 7, Chennareddy I,

Docket No. 332. On September 11, 2006, plaintiffs filed a motion

for leave to file a fourth amended complaint, to add the PAB as a

defendant and three new party intervenors, and for

reconsideration of several motions. In addition, on November

8 27, 2006, plaintiffs filed a motion to consolidate pursuant to

Federal Rule of Civil Procedure 42(a).10

With the exception of those motions that had become moot,

all of the above-described motions that had been filed since

April 2000 were pending when the case was transferred to this

Court in 2007. After the Court denied without prejudice all

pending motions, plaintiffs filed (1) their fourth amended

complaint, and (2) a renewed motion to intervene on behalf of

Davis, Moses, and Gilbert. Those motions were referred to a

magistrate judge for a Report and Recommendation. The magistrate

judge denied both plaintiffs’ request for discovery prior to a

ruling on the motion to intervene, in addition to the motion

itself.11 The GAO then filed a motion for a more definite

statement and partial motion to dismiss, and plaintiffs filed a

motion to compel the GAO’s electronic personnel data. On

February 4, 2009, the magistrate judge granted defendant’s motion

for a more definite statement, denied without prejudice the

partial motion to dismiss, and denied plaintiffs’ motion to

compel.

10 Plaintiffs sought to consolidate all four of the actions; as such, similar motions were filed in all of the cases around this time. 11 Both of those rulings were affirmed on appeal to this Court, see Order dated December 17, 2008, and will not be further addressed in this Memorandum Opinion.

9 B. Chennareddy, Civil Action No. 01-0517

Chennareddy, acting pro se, filed a complaint in this

separate case (“Chennareddy II”) in March 2001, alleging age

discrimination in violation of the ADEA and gender and national

origin discrimination in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.

These claims were based on two specific promotion announcements

for which he had not been chosen, in addition to a continuing

violation claim based on “all promotions since 1982.” Compl. at

3-4, 8, Chennareddy II, Docket No. 1. Chennareddy subsequently

withdrew his gender-based discrimination claim at the initial

hearing, and the parties proceeded to discovery. See Scheduling

Order, Chennareddy II, Docket No. 10.12 On July 31, 2001,

Chennareddy filed a motion “to approve the plaintiff’s claim of

continuing discrimination violation since January 1982 on the

basis of age, brown color, and national origin.” See Chennareddy

II, Docket No. 11.

In April 2002, after having granted multiple requests by the

parties to extend discovery, the Court granted (1) Chennareddy’s

unopposed motion for leave to amend the complaint, and (2) the

parties’ joint motion to extend discovery through August 19,

2002. See Chennareddy II, Docket Nos. 27, 28. Chennareddy’s

12 The Scheduling Order issued on July 20, 2001 also included a referral to a magistrate judge for discovery purposes.

10 amended complaint includes five claims of discrimination based on

“brown color, national origin, and age” arising from his not

being selected for promotions between 1982 and 2002. Amended

Compl. at 1, 3-5, 9, 12, Chennareddy II, Docket No. 29. On

August 19, 2002,13 Chennareddy filed a motion to compel certain

data requested during discovery, in addition to “all such similar

data which has now been discovered to exist in readily available

form in the GAO data files maintained by Bob Mobray, PHD.”

Chennareddy II, Docket No. 34. In that motion, Chennareddy also

sought to extend discovery for an additional sixty days.

Chennareddy II, Docket No. 34.

On October 11, 2002, the Court construed Chennareddy’s July

31, 2001 motion as one for partial summary judgment and denied

the motion without prejudice. See Mem. Order at 1-2, Chennareddy

II, Docket No. 43. Specifically, the Court concluded that there

were both factual and legal disputes that made the motion

premature, and that the parties had not addressed relevant legal

authority regarding the validity of the continuing violation

doctrine. See Mem. Order at 2, Chennareddy II, Docket No. 43

(citing, inter alia, Nat’l R.R. Passenger Corp. v. Morgan,

(2002)). The magistrate judge proceeded to deny

Chennareddy’s motion to compel and for an extension of discovery

13 The following day, counsel entered an appearance on plaintiff’s behalf. See Chennareddy II, Docket No. 35.

11 on December 20, 2002, and Chennareddy filed a motion for

reconsideration of that decision shortly thereafter. See

Chennareddy II, Docket Nos. 49, 51. On September 30, 2003, the

Court denied the motion for reconsideration. See Mem. Order at

2, Chennareddy II, Docket No. 61.

Pending at the time that this case was transferred to this

Court were (1) defendant’s partial motion to dismiss the amended

complaint or, in the alternative, for partial summary judgment;

and (2) plaintiff’s motion to consolidate pursuant to Federal

Rule of Civil Procedure 42(a). In April 2008, after the transfer

of the case to this Court, defendant renewed its motion for

partial dismissal or summary judgment, and Chennareddy filed a

cross motion seeking to (1) consolidate the case with Chennareddy

I, (2) reopen discovery, and (3) amend his complaint to plead a

hostile work environment claim. In February 2009, the magistrate

judge denied all of the requests in plaintiffs’ cross-motions,

and recommended that the Court grant defendant’s motion for

partial summary judgment and deny as moot defendant’s motion for

partial dismissal. See Chennareddy II, Docket Nos. 85, 86.

C. Davis et al., Civil Action No. 06-1002 and Moses, Civil Action No. 06-1712

Plaintiffs in Davis et al. – Arthur L. Davis, Jimmie

Gilbert, and James D. Moses – filed their complaint on May 31,

2006 against the GAO and the PAB. While Gilbert and Davis allege

that they were constructively discharged from the GAO in 1999 and

12 2004, respectively, Moses remains an employee. Compl. at 4,

Davis et al., Docket No. 1. Like the plaintiffs in Chennareddy

I,14 plaintiffs in this action seek to represent a class of

similarly situated individuals in bringing suit against

defendants for maintaining an “unwritten . . . policy and

practice” of using age “as a determinative detrimental factor in

personnel decisions.” Compl. at 3, Davis et al., Docket No. 1.

Based on this policy and the PAB’s failure to timely process

plaintiffs’ administrative complaints, plaintiffs allege that

defendants violated the ADEA, the Equal Pay Act, and the Due

Process and Equal Protection Clauses of the Fifth and Fourteenth

Amendments to the U.S. Constitution. Compl. at 5, Davis et al.,

Docket No. 1.

Plaintiffs seek a declaratory judgment; “front pay, back

pay, increased retirement benefits,” attorneys’ fees;

reinstatement to positions “comparable to the position each

Plaintiff held at the time of termination”; and injunctive relief

to prevent the GAO “from hiring, promoting any employee, or

transferring any employee under the age of 40.” Compl. ¶¶ 50,

61, 68(c), Davis et al., Docket No. 1. Plaintiffs also seek an

injunction requiring the PAB to perform “data analysis as is

necessary to . . . to determine the validity or non-validity of

14 As noted above, in 2000, plaintiffs sought “without success” to intervene in Chennareddy I. Compl. at 4, Davis et al., Docket No. 1; see supra note 9.

13 the existence of the promotion system . . . ; and further to

perform such analysis as is necessary to determine by logical

groupings the actual damages to each and every Plaintiff and

putative class member.” Compl. ¶ 62, Davis et al., Docket No 1.

In addition to being a named plaintiff in Davis et al.,

Moses filed a separate class action complaint against the GAO and

the PAB in October 2006. See Compl., Moses, Docket No. 1. The

Moses complaint acknowledges that “[t]his new lawsuit is somewhat

duplicative of the facts as stated in” Davis et al., and includes

similar allegations of “a number of prohibited personnel

practices and denials of rights in sum amounting to age

discrimination in violation of the [ADEA], and equal treatment

under the law.” Compl. at 7, Moses, Docket No. 1.15 Moses also

seeks to represent a class of approximately 400 GAO auditors “who

were downgraded and/or denied cost of living increases [COLAs] by

action of the GAO management effective on February 16th, 2006.”

Compl. at 1, 6, Moses, Docket No. 1. Moses seeks relief similar

to what is requested in Davis et al., and also seeks relief

designed to reverse the discriminatory impact of the (1) alleged

COLA denials; and (2) Band II “split” or “restructuring,” whereby

employees were divided into two stratified groups in an alleged

15 As in Davis et al., Moses’s complaint includes the PAB as a defendant because “it failed to perform its statutory function to investigate, follow up and prosecute to correct age discrimination violations which it well knew existed.” Compl. at 3, Moses, Docket No. 1.

14 attempt to “intimidate older employees into leaving” their

employment. Compl. at 8-9, 16, 18, Moses, Docket No. 1.

From the filing of the complaints in Davis et al. and Moses

to the time that the cases were transferred to this Court, a

number of motions remained unresolved. Like the complaints

themselves, the motions in the two cases tracked each other

closely and included plaintiffs’ requests to consolidate both

cases into Chennareddy I and for class certification, and

defendants’ requests to stay discovery and class certification

and for dismissal in whole and in part of the actions. After the

transfer of the cases to this Court, defendants filed renewed

motions (1) to dismiss the complaint in Davis et al. pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and (2)

to dismiss all claims in Moses except the age discrimination

claim based on the Band II restructuring.16 After these motions

were fully briefed, the magistrate judge issued orders in both

actions in which she noted that the parties had attached exhibits

to the briefing on the motions, none of which could properly be

16 The Davis et al. plaintiffs also made a renewed attempt to consolidate their case with Chennareddy I, and “a former Band II employee” filed a motion to intervene in the Moses action on behalf of himself and “about 60 similarly situated class members who, like himself, retired rather than suffer the indignity of a demotion and cost of living denials.” Mot. to Intervene at 1, Moses, Docket No. 54. Plaintiffs in both cases requested discovery prior to a hearing on these motions. The magistrate judge denied both the requests for discovery and the underlying motions, and these decisions were affirmed by this Court on appeal. These rulings – in addition to the magistrate judge’s denial of Moses’s renewed motion for a declaratory judgment that he “substantially prevailed as to his individual claims in this case,” which has not been appealed – will not be revisited.

15 considered by the Court in the context of a motion to dismiss.

The magistrate judge then ordered that the briefing on the

motions be stricken from the record, and set a briefing schedule

for renewed briefing. See Mem. Order at 3-4, Moses, Docket No.

83; Mem. Order at 3-4, Davis et al., Docket No. 57. In view of

the objections filed by plaintiffs in both actions, this Court

vacated the deadlines put in place by the magistrate judge, “with

a new briefing schedule to be imposed if appropriate.” Davis et

al., Minute Order (Mar. 2, 2009).

II. Discussion

As the background sections make clear, plaintiffs in these

actions consider their cases to be related and subject to

consolidation, while the Court has repeatedly affirmed its view

that the cases raise distinct issues and should be litigated

separately. The result of plaintiffs’ approach, in addition to

the nature of the actions, is that many of the same issues – both

legal and factual – have arisen in most or all of the cases.

Accordingly, the Court will first discuss the issues that bear on

multiple actions, and then will proceed to address all issues

currently pending in each case.

16 A. Issues Common to Some or All of the Cases

1. The PAB

As a preliminary matter, the Court must address plaintiffs’

attempts to include the PAB as a defendant in all but Chennareddy

II. Plaintiffs in the three other cases seek to hold the PAB

accountable for its alleged failure to timely and appropriately

address their administrative claims of discrimination.

Defendants argue, however, that the PAB is not and cannot be made

a proper party to these cases for a variety of reasons. For the

following reasons, this Court agrees that the PAB is not a

properly named defendant in any of the cases, and will therefore

be dismissed with prejudice from the actions.

The GAO “is a legislative branch agency for which the United

States Congress has created a personnel system separate from the

system of the executive branch.” Chennareddy,

(citing

et seq.). Because GAO employees “have

the same rights and remedies” under anti-discrimination laws as

do executive branch employees, “Congress directed that the PAB

have the same authority over equal employment opportunity and

discrimination matters at GAO as its counterpart agencies,” such

as the Equal Employment Opportunity Commission (“EEOC”). Id; see

also Gen. Accounting Office v. Gen. Accounting Office Pers.

Appeals Bd.,

(D.C. Cir. 1983). “The PAB’s

function in the administration and processing of discrimination

17 complaints, therefore, is analogous to the function performed by

the EEOC in the executive branch.” Chennareddy,

.

With this understanding of the PAB’s role in mind, it

becomes clear that plaintiffs’ claims against the PAB must be

dismissed. It is well-established that Title VII does not

provide a cause of action for complaints regarding the EEOC’s

processing of administrative discrimination complaints. See,

e.g., Jordan v. Summers,

(7th Cir. 2000)

(concluding that a federal employee had no cause of action under

Title VII to bring a claim against the EEOC for its failure to

process her discrimination complaint); Smith v. Casellas,

(D.C. Cir. 1997) (“Congress has not authorized,

either expressly or impliedly, a cause of action against the EEOC

for the EEOC’s alleged negligence or other malfeasance in

processing an employment discrimination charge.”); Keeley v.

Small,

(D.D.C. 2005) (concluding that

plaintiff’s claims relating to employer’s alleged interference in

the EEOC’s investigation was not cognizable under Title VII).

Plaintiffs cite to no authority that would distinguish these

cases or support a similar cause of action for challenging the

PAB’s processing of discrimination complaints under Title VII or

the ADEA. Because the PAB’s role is analogous to that of the

18 EEOC,17 and in the absence of any cause of action authorizing

plaintiffs to challenge the processing of their discrimination

complaints by an agency charged with such a function, this Court

concludes that it lacks subject matter jurisdiction to consider

claims raised against the PAB.18 Cf. Storey v. Rubin,

(N.D. Ga. 1997) (concluding that neither Title

VII nor the ADEA “creates a right or action or confers on this

Court jurisdiction over a claim by a federal employee against the

EEOC, or any other agency, challenging any aspect of the

administrative processes (or any application of that process) by

which complaints of discrimination are investigated and

resolved”).

17 With respect to plaintiffs’ attempt to cast the PAB as somehow colluding with the GAO, the Court simply notes that this unsubstantiated allegation is in fundamental contradiction to the PAB’s status “as a discrete, independent entity.” Gen. Accounting Office,

(acknowledging that the reason for creating the PAB was to “preserve the essential employment rights of GAO staff members”). 18 To the extent that plaintiffs seek relief against the PAB under any other legal theory, those claims are dismissed because they were not addressed in any opposition to the motions filed by defendants seeking dismissal of such claims. Even if the Court were to reach the merits of such claims, they would be dismissed for the reasons advanced by defendants.

19 2. Procedural Requirements under the ADEA and Related Equitable Doctrines19

Plaintiffs have all raised claims under the ADEA, which

“broadly bars age discrimination in employment.” Rann v. Chao,

(D.C. Cir. 2003). The ADEA permits federal

employees to choose one of two mechanisms for pursuing an age

discrimination claim. See, e.g., Stevens v. Dep’t of Treasury,

(1991); Rann,

. First, an

employee may pursue his claim through the agency’s administrative

process “and then file a civil action in federal district court

if he is not satisfied with his administrative remedies.”

Stevens,

-6 (citing 29 U.S.C. § 633a(b)-(c)). A GAO

employee who chooses to utilize the agency’s administrative

process must comply with the regulations promulgated by the GAO

for filing discrimination complaints with the agency. See, e.g.,

; GAO Order 2713.2, attached as Ex. 9 to Pls.’

Opp’n to Def.’s Mot. Dismiss, Davis et al., Docket No. 38. Like

EEO regulations governing federal employees, GAO Order 2713.2

requires an aggrieved employee to consult informally with a

counselor within forty-five days of the allegedly discriminatory

action. GAO Order 2713.2. GAO regulations, in turn, provide for

19 Assessing a plaintiff’s compliance with the ADEA notice requirements and evaluating the applicability of equitable doctrines are fact-specific inquiries that will necessarily require separate analysis in each of the actions where such issues have been raised. Nevertheless, a basic background of the legal standards is appropriate at this juncture to avoid repetition in the sections that follow.

20 the filing of both individual and class discrimination

complaints. See GAO Order 2713.2. An employee may file a

complaint in the district either within 90 days of receiving a

final decision or dismissal by the GAO, or “[a]nytime after 180

days has elapsed from the date the complaint was filed, provided

that GAO has not issued a final decision.” GAO Order 2713.2.20

Alternatively, the employee may elect to bypass the agency’s

administrative process altogether and “decide to present the

merits of his claim to a federal court in the first instance.”

Stevens,

(citing 29 U.S.C. § 633a(d)). At least

thirty days prior to bringing suit in the district court,

however, the employee must first file a Notice of Intent to Sue

with the agency, in this case the GAO’s Office of Opportunity and

Inclusiveness. See § 633a(d). This notice must be filed within

180 days of the occurrence of the alleged discriminatory act.

Id.

Failure to comply with either of the above-described

procedures constitutes a failure to exhaust administrative

remedies and bars an employee from bringing suit in federal

20 As an alternative to filing a complaint in the district court, a GAO employee may seek review from the PAB. An appeal from a decision by the PAB, however, must be pursued in the Federal Circuit. See

(a) (granting exclusive jurisdiction to the Federal Circuit to conduct a limited administrative record review of decisions by the PAB); Ramey v. Bowsher,

(D.C. Cir. 1993) (noting that PAB “decisions under [31 U.S.C.] § 753(a)(7) are subject to judicial review” under

(a), and holding that “[o]nce an employee invokes the [PAB’s] adjudicatory authority in a discrimination case, the employee . . . is constrained to follow the clear path of judicial review set forth in § 755(a)”).

21 court. See Rann,

(holding that where a

federal employee failed to comply with the requirements of §

633a(d), he could not “proceed to federal court by that route,”

and upholding the district court’s dismissal for failure to

exhaust); Washington v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 1998) (explaining that exhaustion of

administrative remedies is required under the ADEA); Singleton v.

Potter,

(D.D.C. 2005) (reiterating the

well-established proposition that exhaustion of administrative

remedies is a prerequisite to filing under the ADEA).

Nevertheless, the administrative remedies under ADEA “are not

jurisdictional in nature: ‘they function like a statute of

limitations and like a statute of limitations, are subject to

waiver, estoppel, and equitable tolling.’” Singleton,

(quoting Brown v. Marsh,

(D.C. Cir.

1985)); see also, e.g., Breen v. Peters,

(D.D.C. 2008) (“The non-jurisdictional 180-day filing deadline

stated in 29 U.S.C. § 633a(d) is subject to equitable tolling in

the proper circumstances.”).

Plaintiffs in the pending actions raise both equitable

tolling and estoppel in an effort to avoid dismissal for failure

to exhaust. “Equitable tolling permits a plaintiff to avoid the

bar of the limitations period if despite all due diligence she is

unable to obtain vital information bearing on the existence of

22 her claim.” Smith-Haynie v. Dist. of Columbia,

(D.C. Cir. 1998). Equitable estoppel, on the other hand,

“prevents a defendant from asserting untimeliness where the

defendant has taken active steps to prevent the plaintiff from

litigating in time.” Currier v. Radio Free Europe/Radio Liberty,

Inc.,

(D.C. Cir. 1998).

It is well-established, however, that the equitable power of

the Court is to “be exercised only in extraordinary and carefully

circumscribed instances.” Mondy v. Sec’y of the Army,

(D.C. Cir. 1988). Indeed, plaintiffs’ burden of

demonstrating the applicability of equitable estoppel is

particularly onerous, because the D.C. Circuit has “read the

Supreme Court’s powerful cautions against application of the

doctrine to the government as normally barring its use to

undercut statutory exhaustion requirements.” See Rann,

(citing Office of Pers. Mgmt. v. Richmond,

(1990), and Deaf Smith County Grain Processors, Inc. v.

Glickman,

(D.C. Cir. 1998)). To the extent

exhaustion and related doctrines are at issue in each of the

cases, they will be addressed individually in Section II.B below.

3. Continuing Violations and National Railroad Passengers Corp. v. Morgan

Plaintiffs in all of the pending cases rely on the legal

theory of continuing violations to argue that the exhaustion

23 requirements discussed above are not a bar to their claims. In

other words, they contend that – despite the fact that many of

the discriminatory actions alleged fall outside the requisite

period for filing under Title VII and the ADEA – their claims are

timely because they are part of a continuing violation by the

GAO. This theory, however, is squarely foreclosed by National

Railroad Passengers Corp. v. Morgan,

(2002).

Therefore, any claims in these actions that are premised on such

a theory must fail as a matter of law.

In Morgan, the Supreme Court considered the timeliness of

the plaintiff’s Title VII claims, which were based on allegations

of both “discrete discriminatory and retaliatory acts and . . . a

racially hostile work environment throughout his employment.”

. The Court rejected the Ninth Circuit’s holding below

that a plaintiff could establish a continuing violation – and

thereby recover for claims that were filed outside the Title VII

limitations period – so long as the plaintiff could show either

(1) a series of sufficiently related violations that occurred

both within and outside of the limitations period, or (2) a

systemic policy or practice of discrimination that operated, in

part, within the limitations period. See

. As the

Court explained, “discrete discriminatory acts are not actionable

if time barred, even when they are related to acts alleged in

24 timely filed charges. Each discrete discriminatory act starts a

new clock for filing charges alleging that act.”

.

The Morgan Court did carve out hostile work environment

claims as an exception to the bar on the doctrine of continuing

violations. Acknowledging that such claims “are different in

kind from discrete acts” and that “[t]heir very nature involves

repeated conduct,” the Court concluded that where “an act

contributing to the [hostile work environment] claim occurs

within the filing period, the entire time period of the hostile

environment may be considered by a court for the purposes of

determining liability.”

.

Plaintiffs endeavor to circumvent the Supreme Court’s

holding in Morgan by recasting their allegations of a

discriminatory pattern of non-promotions and downgraded

performance ratings as hostile work environment claims. See,

e.g., Chennareddy II, Pl.’s Opp’n to Def.’s Mot. Dismiss at 5, 9,

11, Docket No. 76 (describing “a ‘hostile work environment’

consisting of a near absolute bar to fair performance ratings and

promotions for all older employees,” and requesting an

opportunity, if necessary, to “re-plead his claims to conform to

the allegations of hostile environment which he now knows is

applicable”); Davis et al., Compl. at 12-13, Docket No. 1

(alleging that the impact of discriminatory policies such as

lowering ratings, denying advancements, failure to promote, and

25 denial of cost of living increases “has created a hostile work

environment”); Moses, Compl. at 18-19, Docket No. 1 (same). This

argument is unavailing, and the Court rejects it. The types of

discriminatory acts alleged by plaintiffs clearly fall within the

category of discrete acts envisioned by the Morgan Court. See

(noting that “discrete acts such as

termination, failure to promote, denial of transfer, or refusal

to hire are easy to identify,” and holding that any “discrete

discriminatory acts” that took place before the statutory limit

(in that case, 300 days) were “untimely filed and no longer

actionable” (emphasis added)).

Furthermore, the claims advanced by plaintiffs have not been

recognized under the traditional framework for hostile work

environment claims, which are “different in kind from” discrete

discriminatory acts.

. Such claims may arise “when

the workplace is permeated with discriminatory intimidation,

ridicule, and insult, that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an

abusive working environment.”

(alterations and

internal quotation marks omitted) (quoting Harris v. Forklift

Sys., Inc.,

(1993)); accord Oncale v. Sundowner

Offshore Services, Inc.,

(1998). Indeed, another

judge on this Court has persuasively explained the distinction

26 between these types of claims, in addition to the perils of

permitting plaintiffs to conflate the two:

The dangers of allowing standard disparate treatment claims to be converted into a contemporaneous hostile work environment claim are apparent. Such an action would significantly blur the distinctions between both the elements that underpin each cause of action and the kinds of harm each cause of action was designed to address. A hostile work environment under Title VII must be based on one unlawful employment practice of pervasive, insulting, discriminatory conduct that makes the plaintiff’s day-to-day work environment severely abusive. Therefore, cobbling together a number of distinct, disparate acts will not create a hostile work environment. For example, if an employee is discriminatorily denied ten promotions over a period of time, that pattern of conduct may give rise to ten separate claims under Title VII, but it would not create a hostile work environment claim based on pervasive intimidation, insult and ridicule. This is particularly true here because plaintiff failed to exhaust administrative remedies for many of the discrimination and retaliation claims that he now incorporates into a hostile work environment claim.

Rattigan v. Gonzales,

(D.D.C. 2007)

(alterations, citations, and internal quotation marks

omitted)(Huvelle, J.); see also Edwards v. EPA,

(D.D.C. 2006); Childs-Pierce v. Util. Workers Union of

Am.,

(D.D.C. 2005).

The Rattigan court’s reasoning applies with equal force in

these cases, and clearly demonstrates why plaintiffs’ attempt to

raise hostile work environment claims is unavailing. Plaintiffs

have raised claims that are characteristically discrete

employment actions, and the conclusory invocation of the term

“hostile work environment” is insufficient to transform the

27 nature of their claims. See Rattigan,

(“Plaintiff should not be permitted to ‘bootstrap’ his alleged

discrete acts of discrimination and retaliation into a broader

hostile work environment claim.” (quoting Keeley v. Small,

(D.D.C. 2005)); Lester v. Natsios,

(D.D.C. 2003) (rejecting the plaintiff’s argument

that “the specific alleged incidents of discrimination she has

raised collectively constitutes a hostile work environment”;

noting that “it is not at all clear that mere reference to

alleged disparate acts of discrimination against plaintiff can

ever be transformed, without more, into a hostile work

environment claim”). Whether any time-barred claims may

nevertheless be considered in view of the equitable

considerations advanced by plaintiffs will be discussed in the

context of each individual action. Any attempt by plaintiffs,

however, to invoke the continuing violations doctrine to salvage

otherwise untimely claims will not be entertained by this Court.

4. Electronic Personnel Information Maintained by the GAO

A central component of plaintiffs’ claims in these cases

revolves around their allegation that the GAO has a centralized,

comprehensive “database” of electronic personnel information that

(1) is maintained by GAO employee Bob Mobray; (2) has been used

in implementing the discriminatory practices alleged by

plaintiffs, and, if disclosed to plaintiffs, will essentially

28 “prove” all of their claims; and (3) has been wrongfully and in

bad faith withheld from plaintiffs during the pendency of these

actions. The GAO vehemently disputes plaintiffs’

characterization of the agency’s electronic personnel

information, arguing, inter alia, that (1) the data is not in

fact maintained in the type of “system” envisioned by plaintiffs,

and (2) the information is not as relevant to plaintiffs’ claims

as plaintiffs assert. Indeed, much of the argument in the latest

round of briefing in each of the actions is devoted to the

parties’ disputes over (1) the nature of the information

contained in the database; (2) the format in which it has been

kept; (3) Mobray’s ability to access and analyze the information;

(4) what information has in fact already been disclosed to

plaintiffs; and (5) how much, if any, of the information

plaintiffs are entitled to at this time.

The record in each of these cases is replete with references

to the GAO’s electronic personnel information, in addition to a

limited amount of evidence relating to the disputed information

(most notably the Mobray deposition transcripts). Upon review of

the evidence, the Court concludes that – at least insofar as the

format in which the data is kept and its susceptibility to

straightforward analysis is concerned – the agency’s descriptions

of the information are more accurate than plaintiffs’. Aside

from plaintiffs’ conclusory assertions, there is nothing in the

29 record of these cases that would support a finding that the

information electronically amassed and maintained by Mobray can

be readily produced to plaintiffs for analysis, review, and use

in evidence. To the contrary, Mobray’s deposition testimony

makes clear that the information in fact exists in a number of

discrete systems of electronic files, and that the extraction of

the information sought by plaintiffs would require programming

and compilation efforts of varying degrees.

Likewise, plaintiffs’ repeated allegations that the GAO

either wrongfully denied the existence of its electronic data or

wrongfully withheld such data finds no support in the record. As

a preliminary matter, the Court notes that neither Davis et al.

nor Moses has proceeded to discovery of any kind, so allegations

of wrongful withholding from those plaintiffs are entirely

without merit. In contrast, the GAO has produced evidence from

the Chennareddy I parties’ lengthy pre-class certification

discovery period demonstrating that those plaintiffs did in fact

receive substantial information from the agency’s electronic data

files. Defendant correctly notes that the Chennareddy I

plaintiffs have not cited any discovery request that was answered

inaccurately or incompletely, a fact that substantially undercuts

their argument that information was improperly withheld. There

30 is also no evidence suggesting any impropriety in the merits

discovery that took place in Chennareddy II.21

Any additional factual findings regarding the actual

contents of the GAO’s personnel data are unnecessary at this

juncture. What is clear is that regardless of the substance of

the data accessible to the GAO, plaintiffs have not demonstrated

that they are entitled to that information at this juncture.

Indeed, plaintiffs in all of the actions have in one way or

another fundamentally misconceived the role that discovery plays

within the Federal Rules of Civil Procedure and their entitlement

to that discovery. By focusing so extensively on the purported

“database” and the agency’s allegedly wrongful withholding

thereof, plaintiffs have lost sight of the pleading standards set

forth in Rule 8, the role of Rule 12 in permitting a defendant to

test the legal sufficiency of a plaintiff’s complaint, and the

requirement under Rule 26 that a plaintiff demonstrate the

relevance of any requested discovery. Where necessary, these

misapprehensions – in addition to the relevance, if any, of the

GAO’s electronic personnel information – will be addressed more

fully in the discussions below.

21 As discussed in Section II.B.2 below, this conclusion carries particular weight in Chennareddy II, where plaintiff has failed to make any showing whatsoever of why information contained in the GAO’s electronic files that has not been produced to plaintiff is relevant to an adjudication of his claims.

31 B. Resolution of Issues Currently Pending Before the Court

1. Chennareddy I

Currently pending before the Court are plaintiffs’

objections and appeal of the magistrate judge’s February 4, 2009

Order granting defendant’s motion for a more definite statement

and denying plaintiffs’ motion to compel.22 These rulings will be

reviewed under Federal Rule of Civil Procedure 72(a) and affirmed

unless “clearly erroneous or [ ] contrary to law,” except that

the portion of the magistrate judge’s ruling prohibiting

plaintiffs from relitigating the issue of class certification

will be reviewed de novo. See Fed. R. Civ. P. 72(a)-(b).

i. Whether Defendant is Entitled to a More Definite Statement

The magistrate judge did not clearly err in granting

defendant’s motion for a more definite statement. To the

contrary, the magistrate judge reasonably concluded that

plaintiffs’ fourth amended complaint is deficient under Federal

Rules of Civil Procedure 8(a) and 10. The complaint in its

22 As part of this order, the magistrate judge also denied without prejudice defendant’s motion for partial dismissal, which sought to dismiss with prejudice (1) any claims arising from events that occurred after January 3, 2006 (the last date any of the named plaintiffs was employed by the GAO); and (2) any claims against the PAB based on its processing of plaintiffs’ complaints. Given that plaintiffs will be filing yet another complaint in this case, the Court will not disturb the magistrate judge’s denial without prejudice of defendant’s requests for dismissal. Nevertheless, the Court notes that any claims against the PAB plaintiffs might seek to raise in their amended complaint are clearly foreclosed by the analysis in Section II.A.1 above.

32 current form fails to identify (1) any relevant characteristics

of the named plaintiffs (i.e., age, race, or gender); (2) the

types of discrimination allegedly suffered by the named

plaintiffs (i.e., discrimination based on age, race, national

origin, gender, or some combination); (3) the alleged events that

form the basis of their claims; or (4) when such events occurred.

On this basis alone, the magistrate judge’s determination that a

more definite statement is warranted was entirely justified.

Moreover, this Court flatly rejects plaintiffs’ contention

that they cannot – or should not be required to – submit a more

definite statement until they have been given access to the GAO’s

electronic personnel files. Such an approach would permit

plaintiffs to bypass the pleading stage of litigation entirely,

sanctioning an approach under which plaintiffs could simply

allege that the information held by defendant would prove their

claims without actually stating what those claims are in the

short and plain statement required by Rule 8(a). The magistrate

judge’s rejection of plaintiff’s argument on this score was not

only reasonable, but absolutely correct. This Court therefore

affirms the ruling of the magistrate judge insofar as it requires

plaintiffs to file an amended complaint that conforms with

Federal Rules of Civil Procedure 8 and 10. Accordingly,

plaintiffs will be required to forthwith submit a complaint that

(1) includes separately numbered paragraphs (as opposed to

33 headings); and (2) at a minimum, clearly identifies each of the

named plaintiffs, including their individual claims against the

GAO and the factual basis for those claims.

ii. Whether Plaintiffs are Entitled to Immediate Production of the GAO’s Electronic Personnel Data

The magistrate judge’s denial of plaintiffs’ motion to

compel was neither clearly erroneous nor contrary to law.

Plaintiffs’ motion to compel is based on their arguments relating

to the GAO’s electronic personnel information. But as the Court

discussed in Section II.A.4 above, there is simply no support in

the record for plaintiffs’ contention that any information was

wrongfully withheld from them. Plaintiffs also appear to

conflate their entitlement to discovery for class certification

and their entitlement to discovery on the merits of their

claims.23 The former will be discussed at more length in the

section that follows. As for the latter, plaintiffs are simply

not entitled to discovery on the merits of their claims until

they have properly pled such claims. For these reasons, the

magistrate judge’s denial of the motion to compel is affirmed.

23 Obviously, these two categories may overlap. But such a distinction is important here, because plaintiffs fail to acknowledge that this case has not yet proceeded to discovery on the merits of their claims.

34 iii. Class Certification

The magistrate judge’s order stated that plaintiffs’ amended

complaint must be “confined to the claims of the named

Plaintiffs.” Order at 2 n.1, Chennareddy I, Docket No. 412. The

parties agree that this limitation effectively extinguished the

class claims in this action, and that this part of the magistrate

judge’s order should be reviewed de novo. This Court agrees and,

for the reasons discussed below, will vacate that portion of the

order.

After a lengthy period of class discovery many years ago,

the Court issued a ruling denying plaintiffs’ motion to certify a

class. Before this case was transferred to this Court,

plaintiffs sought reconsideration of this ruling on multiple

occasions, but their requests were never considered on the

merits. In view of this fact, and in the interest of justice,

this Court concludes that plaintiffs should be given one final

opportunity to show cause why they should be permitted to

continue to pursue class certification in this action. The Court

emphasizes that this ruling is not premised on a finding that

defendant engaged in the wrongful withholding of evidence during

the precertification discovery period. As previously noted in

Section II.A.4 above, this Court finds no support in the record

for such a conclusion. Nor is the Court’s ruling intended to

suggest that the Court disagrees with the previous denial of

35 class certification, the merits of which need not be addressed at

this juncture. Finally, the Court notes that plaintiffs should

not take this briefing opportunity as an invitation to simply

rebrief the issue of class certification. Rather, plaintiffs

must show cause why the previous ruling on class certification

was in error and why such error mandates that plaintiffs be given

a renewed opportunity to litigate the issue. Specifically,

plaintiffs must:

(1) provide a clear, concise explanation of the information that was not available to them and/or wrongfully withheld from them during the initial period of class discovery and that undermines the Court’s ruling on class certification;

(2) explain why such information is necessary to a fair adjudication of the class certification issue; and

(3) cite to legal authority supporting their contention that the Court’s ruling on class certification was in error and their argument that they are entitled to an opportunity to relitigate the issue of class certification.

Such briefing will be permitted to proceed, however, only after

plaintiffs file a complaint that comports with the Federal Rules

of Civil Procedure. Because of the inexcusable delay that has

plagued the litigation of this case since its inception, the

Court will impose abbreviated filing deadlines for both the

filing of an amended complaint and plaintiffs’ briefing showing

36 cause why they should be permitted to pursue class certification.

2. Chennareddy II

Pending before the Court are Chennareddy’s appeal of and

objections to the magistrate judge’s (1) denial of his cross

motion to reopen discovery, compel disclosure of the electronic

personnel data, and for leave to amend his complaint;24 and (2)

report and recommendation that the Court grant the GAO’s motion

for partial summary judgment and deny as moot its motion for

partial dismissal. These issues will be addressed in turn.

i. Whether the Magistrate Judge’s Denial of Chennareddy’s Request to Reopen Discovery and for Leave to Amend His Complaint is Clearly Erroneous or Contrary to Law

As a preliminary matter, Chennareddy argues that his appeal

of the magistrate judge’s denial of his motion to reopen

discovery and for leave to amend the complaint should be reviewed

de novo by this Court, because the rulings are “tantamount to a

dismissal” of his claims. Pl.’s Objections to & Appeals from

Magistrate Judge’s Order(s) at 6, Chennareddy II, Docket No. 87.

This argument finds no support either the facts of this case or

24 That motion also included a request to consolidate this case with Chennareddy I, which the magistrate judge denied. That ruling has not been appealed and the issue will not be addressed further by this Court. See Pl.’s Objections to & Appeals from Magistrate Judge’s Order(s) at, Chennareddy II, Docket No. 87.

37 in the law. Therefore, as with other rulings on non-dispositive

matters, the Court will review the magistrate judge’s denial of

the relief requested in Chennareddy’s motion under the familiar

standard of Federal Rule of Civil Procedure 72(a). Rule 72(a)

directs the Court to “modify or set aside any part of the

[magistrate judge’s] order that is clearly erroneous or is

contrary to law.” Under this deferential standard, the

magistrate judge’s ruling must be affirmed “unless on the entire

evidence the court is left with the definite and firm conviction

that a mistake has been committed.” Collett v. Socialist

People’s Libyan Arab Jamahiriya,

(D.D.C.

2006) (internal quotation marks omitted).

Chennareddy relies on the allegedly wrongful withholding of

the electronic personnel information discussed in Section II.A.4

above to support his request to reopen discovery and for leave to

amend his complaint. Specifically, Chennareddy contends that

information from the electronic files should have been produced

when the parties were engaged in discovery from 2001 to 2002.

According to Chennareddy, the GAO’s failure to include this

information in its Rule 26(a)(1) disclosures, or to acknowledge

the existence of such data in response to Chennareddy’s discovery

requests, mandate the reopening of discovery before a ruling on

defendant’s potentially dispositive motion. See Pl.’s Objections

to & Appeals from Magistrate Judge’s Order(s) at 8-9, Chennareddy

38 II, Docket No. 87. Chennareddy also argues that unless he is

permitted to amend his complaint, he will be unable to prove his

claims relating to the pattern and practice of discrimination

about which he complains. See Pl.’s Objections to & Appeals from

Magistrate Judge’s Order(s) at 10, Chennareddy II, Docket No. 87.

The magistrate judge correctly noted that Chennareddy has

failed to provide any justification for why he should be

permitted to amend his complaint at this late juncture.

Moreover, as the Court has noted, Chennareddy may not rely on the

continuing violations doctrine to support his claims, so any

attempt to amend his complaint on that basis would be futile.

Chennareddy likewise fails to explain how any additional

discovery would be relevant to (1) any of the discrete non-

promotion claims alleged in his complaint; or (2) a ruling on the

pending motion for summary judgment, which raises legal issues

relating to exhaustion. Finally, as the magistrate judge

recognized, Chennareddy made similar requests to extend discovery

and to compel disclosure – filed in response to the Mobray

deposition conducted in June 2002 – that were considered on their

merits and denied by the Court. Because the magistrate judge’s

denial of Chennareddy’s requests was not clearly erroneous or

contrary to law, those rulings are affirmed.

39 ii. The Court Will Adopt the Magistrate Judge’s Report and Recommendation

This Court’s review of the magistrate judge’s report and

recommendation is governed by Federal Rule of Civil Procedure

72(b). “When a party files written objections to any part of the

magistrate judge’s recommendation with respect to a dispositive

motion, the Court considers de novo those portions of the

recommendation to which objections have been made, and ‘may

accept, reject, or modify the recommended decision[.]’” Robinson

v. Winter,

(D.D.C. 2006) (quoting Fed. R.

Civ. P. 72(b)).

In its motion for partial dismissal or partial summary

judgment, defendant seeks to dismiss all but five of the non-

selection claims. Defendant argues that (1) the Court lacks

subject matter jurisdiction over claims that were previously

adjudicated by the PAB; (2) a number of claims were not properly

exhausted at the administrative level, and should therefore be

dismissed; (3) Chennareddy did not actually apply for some of the

promotion opportunities discussed in the complaint; and (4) some

of Chennareddy’s non-promotion claims should be limited to age

only, because he did not raise Title VII claims at the

administrative level. The magistrate judge addressed each of

these issues, concluding that only the five claims identified by

defendant could survive summary judgment. Although Chennareddy

40 objects to the magistrate judge’s report and recommendation, he

does not challenge the factual basis for the magistrate judge’s

conclusion that many of the claims in the complaint were not

timely raised. Rather, Chennareddy relies largely on the

continuing violations/hostile work environment theory to justify

his failure to exhaust administrative remedies. This theory,

however, is unavailing and must be rejected, as discussed in

Section II.A.3 above.

Chennareddy also attempts to invoke the doctrines of

equitable tolling and estoppel to save his non-exhausted claims,

arguing that the agency’s failure to process his claims and the

withholding of evidence “precludes any dismissal on timeliness

grounds.” Pl.’s Objections to & Appeals from Magistrate Judge’s

Order(s) at 13, Chennareddy II, Docket No. 87. But as defendant

correctly notes, Chennareddy never even articulates the legal

standard for equitable tolling or estoppel. Nor does he present

facts demonstrating – or even suggesting – that he was unable to

gather information about his claim or that the agency engaged in

misconduct to prevent him from engaging in the administrative

process. See Hedrich v. Bd. of Regents of Univ. of Wis. Sys.,

(7th Cir. 2001) (recognizing that equitable

estoppel requires active steps amounting “to a deliberate design

by the employer or actions that the employer should unmistakably

have understood would cause the employee to delay filing his

41 charge,” and noting that “[t]hey are typically acts of wrongdoing

such as hiding evidence or promising not to rely on a statute of

limitations defense” (internal quotations and citations

omitted)). In sum, Chennareddy has not carried his weighty

burden of demonstrating that equitable doctrines should excuse

his untimeliness in filing. For these reasons, and upon careful

review of the magistrate judge’s report, the Court adopts in full

the report and recommendation. Defendant’s motion for partial

summary judgment will be granted.

3. Davis et al. and Moses

Currently pending before the Court in these actions are

plaintiffs’ appeals of the magistrate judge’s orders striking the

pleadings associated with defendants’ motions to dismiss. This

Court agrees with plaintiffs that, particularly in view of the

substantial delay that has already occurred in these cases,

requiring the parties to completely rebrief defendants’ requests

for dismissal would cause substantial prejudice to plaintiffs.

Accordingly, and because this Court concludes that the magistrate

judge’s orders were contrary to Federal Rule of Civil Procedure

12,25 this Court will vacate those orders, reinstate the briefing

25 A magistrate judge’s ruling on a non-dispositive matter may only be overturned if that ruling is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). The Court concludes that this standard has been met here. Rule 12(f)(1) grants a court the authority to, on its own, “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). As a preliminary matter, it is far from clear that the briefing on defendants’ motions to dismiss qualify as material to be stricken from the record under Rule 12. See Modaressi v.

42 on defendants’ motions, and proceed to consider the merits of the

parties’ arguments in both cases. Because of the substantial

overlap between both the plaintiffs in these cases and the claims

raised, this Court will address both of defendant’s motions in

tandem.

i. Standard of Review

The magistrate judge correctly noted that the parties in

both Davis et al. and Moses submitted materials that are not

properly considered under Federal Rule of Civil Procedure

12(b)(6). See Gustave-Schmidt v. Chao,

(D.D.C. 2002) (noting that in deciding a motion to dismiss under

Rule 12(b)(6), a court may consider only “the facts alleged in

the complaint, documents attached as exhibits or incorporated by

reference in the complaint, and matters about which the Court may

take judicial notice”). Pursuant to Rule 12(d), the Court will

convert those portions of defendant’s motion brought under Rule

12(b)(6) to a motion for summary judgment under Rule 56.

Rule 56 permits the Court to grant summary judgment only if

the moving party has shown that there are no genuine issues of

Vedadi,

, 54 n.2 (D.D.C. 2006) (noting that a motion to dismiss is not a pleading for Rule 12(f) purposes); see also Fed. R. Civ. P. 7 (defining pleadings as distinct from motions). Assuming, however, that the struck material does fall under Rule 12, there is nothing in the record to suggest that the material is “redundant, immaterial, impertinent, or scandalous.” The proper course for addressing material attached to a motion to dismiss brought under Rule 12(b)(6) is found in Rule 12(d), which permits the Court to either exclude the material from consideration, or to treat the motion “as one for summary judgment under Rule 56, giving “[a]ll parties . . . a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).

43 material fact and that the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett,

(1986); Waterhouse v. Dist. Of

Columbia,

(D.C. Cir. 2002). The party seeking

summary judgment bears the initial burden of demonstrating the

absence of a genuine dispute of material fact. See Celotex,

. In determining whether a genuine issue of material

fact exists, the court must view all facts in the light most

favorable to the non-moving party. See Matsushita Elec. Indus.

Co. Ltd. v. Zenith Radio Corp.,

(1986). To

survive a motion for summary judgment, plaintiff cannot merely

rely on the unsupported allegations of the complaint, and must

present more than the “mere existence of a scintilla of evidence”

in her favor. Anderson v. Liberty Lobby, Inc.,

(1986).

On the other hand, to the extent that defendant has raised

issues properly considered under Rule 12(b)(1) standards, “it is

well established in this Circuit that a court is not limited to

the allegations in the complaint, but may also consider material

outside of the pleadings in its effort to determine whether the

court has jurisdiction in the case.” Alliance for Democracy v.

Fed. Election Comm’n,

(D.D.C. 2005); see

Coal. for Underground Expansion v. Mineta,

, 198

44 (D.C. Cir. 2003); Herbert v. Nat’l Acad. of Sciences.,

(D.C. Cir. 1992).

ii. Whether All of Plaintiffs’ Non-ADEA Claims are Subject to Dismissal

Defendant seeks dismissal of plaintiffs’ Equal Pay Act

claims because (1) that statute does not cover age-based

discrimination; and (2) even if it did, the amount of damages

requested by plaintiffs ($300,000) require that any Equal Pay Act

claim be raised in the Court of Federal Claims. Plaintiffs in

both cases did not address these arguments in their oppositions

to defendant’s motions, and the request to dismiss these claims

will therefore be granted as unopposed. See Tnaib v. Document

Tech., Inc.,

(D.D.C. 2006) (“When a

plaintiff files a response to a motion to dismiss but fails to

address certain arguments made by the defendant, the court may

treat those arguments as conceded.”) (quotation omitted); see

also Twelve John Does v. Dist. of Columbia,

(D.C. Cir. 1997) (“Where the district court relies on the absence

of a response as a basis for treating the motion as conceded, we

honor its enforcement of the rule.”). Plaintiffs have similarly

failed to address defendants’ arguments for dismissal of any and

45 all constitutional claims, and these claims will likewise be

dismissed.26

Defendant also seeks to dismiss any claims brought by

plaintiffs against the PAB. As Section II.A.1 makes clear, the

Court agrees that the complaints in these actions must be

dismissed insofar as claims against the PAB are concerned.

Accordingly, the only claims remaining in these actions are

plaintiffs’ ADEA claims.

iii. Davis and Gilbert’s ADEA Claims

Defendant argues that both Davis’s and Gilbert’s ADEA claims

are subject to dismissal because they failed to comply with the

notice requirements set forth in 29 U.S.C. § 633a(d).27 As

defendant points out, the Davis et al. complaint is almost

entirely devoid of specific allegations regarding the

discriminatory actions allegedly taken against Davis or Gilbert

or when such actions were taken. A review of the complaint,

however, does make clear that neither plaintiff filed a Notice of

26 Alternatively, these claims would fail on the merits because the ADEA provides an exclusive remedy for discrimination claims brought by federal employees. See, e.g., Lutes v. Goldin,

(D.D.C. 1999) (“Courts in this jurisdiction have relied upon Brown [v. GSA,

(1976),] and Thorne [v. Cavazos,

(D.D.C. 1990)),] repeatedly to bar constitutional challenges arising under claims of federal employment discrimination.”). 27 Defendant also contends that plaintiffs’ claims are untimely because the complaint was filed outside the applicable statute of limitations period. Because this Court agrees with the agency that plaintiffs did not comply with the notice requirement, however, it need not reach this argument.

46 Intent to Sue within 180 days of any alleged discriminatory

action by the agency.

Davis and Gilbert contend that they both filed two Notices

of Intent to Sue – one in 200028 and one on April 6, 2005. Davis,

however, claims that he was “constructively discharged” from the

GAO on June 1, 2004, Compl. at 4, Davis et al., Docket No. 1.

Accordingly, because Davis left the GAO more than 180 days before

April 6, 2005, this notice cannot form the basis of a properly

exhausted claim. Davis, moreover, identifies no discriminatory

practice that occurred within 180 days of his 2000 notice.

Rather, he simply refers generally to reduced performance

ratings, “humiliation and degradation in his leadership status,”

and “generalized and unwarranted abuse.” Compl. at 6-7, Davis et

al., Docket No. 1. These vague allegations are insufficient to

demonstrate that his claims were exhausted. See Morgan,

(requiring specific identification of a challenged

employment practice).

The allegations relating to Gilbert are similarly vague and

lacking in any detail about when the alleged downgrading of his

performance ratings or withholding of favorable assignments

occurred. See Compl. at 7-8, Davis et al., Docket No. 1. Like

Davis, Gilbert has failed to point to a specific employment

28 The GAO has no record of these notices. For the purposes of this analysis, however, the Court takes the facts in the light most favorable to plaintiffs and assumes that such notices were filed.

47 action that occurred within 180 days of the filing of either

Notice of Intent to Sue. Indeed, Gilbert alleges that he “took

early retirement” in June 1999, see Compl. at 8-9, Davis et al.,

Docket No. 1, which means that both notices were necessarily

filed outside § 633a(d)’s 180-day time limit.

Neither Davis nor Gilbert disputes the facts upon which the

above analysis is based. They nevertheless contend that the

exhaustion requirements should not apply because of the

misconduct of the GAO and its failure to comply with its own

regulations for processing discrimination complaints. These

arguments will be addressed in Section II.B.3.v below.

iv. Moses’s ADEA Claims

Many of Moses’s allegations relating to downgraded

performance ratings and being “relegated in job assignments to

reporting to younger staff” suffer from the same problems as

those identified with respect to Davis and Gilbert. See Compl.

at 9, Davis et al., Docket No. 1. Moses, however, has identified

two specific, discrete allegedly discriminatory actions: the Band

II restructuring that took place between December 2005 and

January 2006 and which resulted in his demotion, and the denial

of COLAs in February 2006. See, e.g., Compl. at 15-17, Moses,

Docket No. 1; Compl. at 10-11, Davis et al., Docket No. 1.

Because Moses is a named plaintiff in both actions, and in view

of the overlap of the allegations, a consolidated analysis of the

48 claims he has raised will provide the clearest assessment of what

has been timely raised, which claims are cognizable, and in which

action such claims properly belong.

Unlike Davis and Gilbert who only availed themselves of the

direct route to federal court provided by 29 U.S.C. § 633a(d),

Moses pursued his claims both directly through § 633a(d) and also

through the administrative process contemplated by § 633a(b). In

the Davis et al. complaint, Moses alleges that he made the

following efforts to comply with the ADEA’s procedural

requirements: he filed a Notice of Intent to Sue in 2000;29 an

administrative complaint with the GAO in 2002; a Notice of Intent

to Sue on April 6, 2005; and an administrative complaint with the

GAO on February 17, 2006. See Compl. at 9-12, Davis et al.,

Docket No. 1. The Moses complaint references these filings, and

also includes two additional attempts by Moses at exhaustion: an

administrative complaint filed on March 30, 2006; and another

Notice of Intent to Sue filed on August 9, 2006 (received by the

GAO on August 14, 2006). See Compl. at 11-12, Moses, Docket No.

1.

As a preliminary matter, defendant contends (in both Davis

et al. and Moses) that the 2000 and 2005 Notices of Intent to Sue

were not filed within 180 days of an alleged discriminatory

29 As with Davis and Gilbert, the GAO claims that it cannot locate this notice. Taking the facts in the light most favorable to Moses, the Court will assume that such notice was in fact filed.

49 practice. The Court agrees. Like Davis and Gilbert, Moses has

not identified any allegedly discriminatory action taken by the

GAO within 180 days of those notices. Accordingly, any such

claims have not been exhausted.30

The Court also agrees with defendant that because the Band

II restructuring occurred after the filing of Moses’s 2005 Notice

of Intent to Sue, any claim based on the restructuring was not

covered by that notice. Cf. Morgan,

(holding

that because “[e]ach discrete discriminatory act starts a new

clock for filing charges alleging that act,” Title VII requires

that a new charge must be filed within the statutory time period

after the act occurs). Therefore, the Band II restructuring

claim will be dismissed from the Davis et al. action. Defendant

acknowledges, however, that Moses did subsequently comply with

the requirements of 29 U.S.C. § 633a in pursuing this claim at

the administrative level, and that the claim has been properly

raised in the Moses action.

Next, defendant argues (again in both Davis et al. and

Moses) that the claims raised in Moses’s 2002 administrative

complaint – discrimination and retaliation claims based on

lowered performance ratings – were not accompanied by any

materially adverse consequences. The agency thus contends that

30 Based on this conclusion, the Court need not reach defendant’s argument that the claims were not filed within the statute of limitations.

50 such claims are not cognizable under the ADEA. See, e.g.,

Rattigan v. Gonzales,

(D.D.C. 2007).

Plaintiff had the opportunity – and the obligation – to rebut

this argument not once, but twice. Because he failed to do so,

these claims are deemed conceded and will be dismissed. See,

e.g., Buggs v. Powell,

(D.D.C. 2002)

(granting summary judgment on discriminatory non-selection claim

where plaintiff “had the opportunity to respond to all of the

challenges to the claims in his complaint,” but failed to respond

to defendant’s arguments).

Defendant’s final argument, made in the Moses action only,

is that plaintiff’s August 2006 Notice of Intent to Sue was filed

more than 180 days after the effective date of either the Band II

restructuring or the determination of plaintiff’s eligibility for

a COLA. As noted above, the Band II restructuring claim may

proceed because plaintiff exhausted it by way of the

administrative process. This leaves plaintiff’s COLA claim. In

its responses to plaintiffs’ objections and appeal of the

magistrate judge’s order, defendant acknowledged that

supplemental briefing might be warranted in view of the passage

of the Lilly Ledbetter Fair Pay Act of 2009,

(3),

, 6. See

(d)(3) (“[A]n unlawful

practice occurs, with respect to discrimination in compensation

in violation of [the ADEA], when a discriminatory compensation

51 decision or other practice is adopted, when a person becomes

subject to a discriminatory compensation decision or other

practice, or when a person is affected by application of a

discriminatory compensation decision or other practice, including

each time wages, benefits, or other compensation is paid,

resulting in whole or in part from such a decision or other

practice.”). The Court agrees that such briefing should be filed

in the Moses action. Therefore, defendants’ motion to dismiss in

Moses will be denied without prejudice as to plaintiff’s

discrimination claim arising from the alleged denial of a COLA.

v. Whether the Application of Equitable Doctrines is Warranted

Plaintiffs make no attempt to challenge the factual basis

for defendant’s arguments relating to the untimeliness of their

claims. Rather, they argue that equitable tolling and equitable

estoppel should bar defendant’s reliance on plaintiffs’ failure

to exhaust, because (1) the GAO’s administrative process “is

defective and meaningless,” and the agency failed to follow its

own regulations for the processing of administrative complaints;

and (2) the agency acted in bad faith by withholding the

electronic personnel data in Chennareddy I, into which plaintiffs

attempted to intervene. Neither of these arguments is sufficient

to persuade the Court that equitable doctrines should apply in

this case.

52 Plaintiffs’ allegations regarding the defects in the GAO’s

administrative process are insufficient to justify invoking

equitable doctrines to excuse the failure to comply with 29

U.S.C. § 633a. Most of plaintiffs’ complaints relate to the

failure to give notice of procedures as required by the agency’s

regulations and the substantial delay in processing

administrative complaints. Although these are serious

allegations, they do not lead to the logical conclusion that the

agency is intentionally interfering with employees’ rights under

the ADEA. Importantly, plaintiffs do not claim that they were

unaware of the ADEA’s procedural requirements or that the

failures of the GAO’s administrative process actually prevented

plaintiffs from timely filing their claims. This conclusion is

underscored by the ADEA itself, which expressly permits employees

to bypass the agency’s administrative process altogether and file

a claim directly in federal court.

The Court also rejects plaintiffs’ attempts to cast

aspersions on the GAO for its alleged withholding of electronic

personnel data, which is most properly viewed as an argument in

favor of equitable estoppel. As discussed in Section II.A.4

above, these allegations find no support in the record. More to

the point, any wrongdoing that took place in Chennareddy I, if

any, is entirely irrelevant to the Davis et al. and Moses

plaintiffs. Until now, plaintiffs in these actions were not

53 entitled to discovery. Their reliance on what took place in a

separate action – into which they have repeatedly, but

unsuccessfully, sought to intervene – is patently inadequate to

clear the extraordinarily high hurdle required to invoke

equitable estoppel against the government. See, e.g., United

States v. Philip Morris Inc.,

(D.D.C.

2004) (“[N]either the Supreme Court nor this Circuit has ever

upheld a finding of equitable estoppel against the Government.”);

Rann,

(recognizing the “powerful cautions”

against applying equitable estoppel against the government). For

these reasons, any and all claims that were not properly raised

under 29 U.S.C. § 633a will be dismissed.

III. Conclusion

For the reasons stated above, the Court rules as follows:

A. Chennareddy I, Civ. Action No. 87-3538

The portions of the magistrate judge’s order granting

defendant’s motion for a more definite statement and denying

plaintiffs’ motion to compel are AFFIRMED. The magistrate

judge’s order is VACATED insofar as it prohibits plaintiffs from

including class claims in their amended complaint. Plaintiffs

will be permitted to submit briefing showing cause why the

Court’s refusal to certify a class was in error and why they

should be permitted to continue litigating class claims after an

54 amended complaint complying with Federal Rules of Civil Procedure

8 and 10 is filed.

B. Chennareddy II, Civ. Action No. 01-0517

The magistrate judge’s order denying plaintiff’s requests to

consolidate, to reopen discovery, and for leave to amend the

complaint is AFFIRMED. The magistrate judge’s report and

recommendation is ADOPTED, and defendant’s motion for partial

summary judgment is GRANTED. Defendant’s motion for partial

dismissal is DENIED AS MOOT.

C. Davis et al., Civ. Action No. 06-1002

The magistrate judge’s order striking the pleadings is

VACATED, and defendant’s motion to dismiss is GRANTED.

Plaintiffs’ complaint is DISMISSED WITH PREJUDICE.

D. Moses, Civ. Action No. 06-1712

The magistrate judge’s order striking the pleadings is

VACATED. Defendant’s motion to dismiss is GRANTED IN PART AND

DENIED IN PART without prejudice to refiling in connection with

the parties’ supplemental briefing on the impact, if any, of the

Lilly Ledbetter Fair Pay Act of 2009.

55 When filing the appropriate pleadings and briefs referenced

herein, plaintiffs are cautioned to only make arguments

consistent with this opinion and not attempt to relitigate

matters already decided. An appropriate order will accompany

this Memorandum Opinion.

Signed: Emmet G. Sullivan United States District Judge December 18, 2009

56