UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CLIFFORD D. PEARSON

Plaintiff, Civil Action No: 17-1965 v.

ELAINE L. CHAO, Secretary, U.S. Department of Transportation,

Defendant.

MEMORANDUM OPINION

Plaintiff Clifford D. Pearson, a former federal employee,

brings this action against Elaine L. Chao, Secretary of the

United States Department of Transportation (“DOT” or

“Defendant”). Mr. Pearson alleges, inter alia, violations of

employment discrimination based on his color and race, pursuant

to Title VII of the Civil Rights Act,

et seq.

(“Title VII”) and discrimination based on his disability

pursuant to the Rehabilitation Act of 1973, 29 U.S.C § 790 et.

seq. (“Rehabilitation Act”). Am. Compl., ECF No. 8. Pending

before the Court is defendant’s renewed motion to dismiss Mr.

Pearson’s amended complaint. Upon careful consideration of

defendant’s renewed motion to dismiss, plaintiff’s opposition,

the defendant’s reply thereto, and for the reasons discussed

below, defendant’s renewed motion to dismiss is GRANTED. I. Background

Mr. Clifford Pearson is an African-American man who was

formerly employed with DOT. He has several grievances with DOT

that relate to DOT’s alleged failure to provide reasonable

accommodations for him when he was temporarily disabled and DOT’s

alleged discrimination against him because of his race.

The first grievance relates to DOT’s alleged discriminatory

treatment based on Mr. Pearson’s disability. While employed at

DOT, Mr. Pearson suffered an injury to his spine that disabled him

temporarily. Am. Compl., ECF No. 8 at 21. This injury led to a

diagnosis of a cervical spine fracture, and Mr. Pearson was

medically required to wear a cervical collar for an extended

period of time. Id. From July 2014 to November 2014, he requested

accommodations for his temporary disability in the form a

“telework agreement, office work station modification, and mix use

of telework hours and sick leave.” Id. at 2, 11. He provided a

doctor’s note on September 25, 2014, with a diagnosis and a

recommendation that Mr. Pearson be allowed to work the maximum

number of teleworking days the agency allows weekly for a total of

12 weeks. Id. at 24–25. DOT authorized Mr. Pearson’s request for

reasonable accommodations on October 10, 2014. Id. at 32. After

authorizing the accommodations, DOT required Mr. Pearson to check

in monthly to determine his medical status. Id. at 33-34.

The second grievance relates to DOT’s alleged discriminatory

2 treatment based on DOT’s failure to promote Mr. Pearson. Mr.

Pearson applied for an open position of Realty Specialist and, in

early March, the application tracking system indicated that his

application met the vacancy requirements and had been referred to

a manager. Id. at 40. Around that same time, Mr. Pearson sent an

anonymous letter to EEOC complaining about discrimination in DOT’s

hiring practices. Id. at 43.

Mr. Pearson was interviewed for the Realty Specialist

position, but on July 21, 2016, he received an email informing him

that another candidate was selected. 1 Id. at 42. Mr. Pearson

learned that a Caucasian woman was chosen instead. Id. When he

asked for advice on ways to be more competitive for any future

comparable positions, he was told “you are not politically

connected” and “you’re taking advice from the wrong people.” Id.

Mr. Pearson alleges he was denied the promotion because of his

race, and in retaliation for the anonymous complaint that he

filed. Id. at 42–43. He also alleges that he was denied the

position because of his prior requests for leave and telework

1 Mr. Pearson’s complaint contains conflicting dates for when he was denied the promotion. The Amended Complaint initially refers to an April 19, 2016 date as the day he was “not selected for the promotion position of Realty Specialist.” Am. Compl., ECF No. 8 at 11. However, later in the complaint, Mr. Pearson states that “[o]n July 21, 2016, [he] received a USDOT email stating . . . ‘another candidate was selected’” for the position. Id. at 42. Construing the complaint in the light most favorable to Mr. Pearson, the Court will assume he meant the later of the two dates. However, for the reasons that follow, the analysis remains unchanged regardless of which date Mr. Pearson was denied the promotion. 3 accommodations, and because he refused to disclose his medical

information during telework check-ins. Id. at 3.

Mr. Pearson’s last grievance relates a performance review he

received on July 14, 2016, that stated he “Achieved Results.” Id.

at 12. This rating meant that he “achieved the results listed in

[his] performance plan” Id. Mr. Pearson argues that this

performance review “evidenced his ability to perform his duties

and qualifications to be promoted from within the Agency.” Id. at

12. 2

On October 25, 2016, Mr. Pearson made an initial contact with

an Equal Employment and Opportunity (“EEO”) counselor to discuss

what he believed were discriminatory actions by DOT which he

alleged began in September 2014 and continued until October 20,

2016. Am. Compl., Ex. A, ECF No. 9 at 5. He filed a formal

complaint on December 30, 2016, alleging that he was discriminated

by DOT because of his disability when DOT failed to provide a

reasonable accommodation during the months of September to

November 2014, and when DOT failed to promote him because of his

color and race. Am. Compl., ECF No. 8 at 3. Generally, Mr. Pearson

alleged that all African-American employees in his office were not

considered for promotion beyond a certain paygrade, while

Caucasian employees were considered for promotion. See id. at 10.

2 The EEO treated this statement as a separate claim that he was discriminated against because of his race. Am. Compl., Ex. B, ECF No. 9-1 at 4. 4 On February 28, 2017, the Departmental Office of Civil Rights

(“DOCR”) notified Mr. Pearson of its final decision to dismiss his

complaint in its entirety. Am. Compl., Ex. B, ECF No. 9-1 at 5.

DOCR first explained that EEOC regulations required Mr. Pearson to

make first contact with an EEO counselor within 45 days of the

alleged discriminatory actions. Id. DOCR reasoned that his first

claim based on a request for a reasonable accommodation occurred

from “September 2014 to November 2014,” over two years before he

contacted an EEO counselor. Id. His second claim, related to a

July 3, 2015 3 leave request, occurred over a year before he

contacted the EEO counselor. Id. His third claim, that he was

discriminated against because of his race when he was notified

that he did not get a promotion on April 19, 2016, occurred over

six months before he made contact. 4 Id. Finally, his fourth claim,

that on July 14, 2016, he received a performance appraisal rating

of “Achieved Results,” occurred over two months before he

contacted the EEO counselor. Id. Because all of the alleged

discriminatory acts occurred outside the 45-day window, Mr.

Pearson’s complaint was dismissed based on untimely contact with

the EEO counselor. Id. (citing

(a)(1)). DOCR

3 Mr. Pearson was not disabled in July 2015, it is unclear if this date is a clerical error and actually refers to a July 2014 date. Either way, the analysis remains unaffected because either time period would have fallen outside the 45-day window. 4 Under the July 21, 2016 promotion denial date, this would have

been over two months months before his contact with the EEO counselor. 5 informed Mr. Pearson that he could appeal the decision to the

Office of Federal Operations (“OFO”) or file a civil action in a

U.S. District Court.

Mr. Pearson notified DOCR of his intent to appeal the final

decision to the OFO but failed to file a supporting brief. Am.

Compl., Ex. B, ECF No. 9-1 at 8–10. Defendant filed a brief in

opposition, arguing the claims were properly dismissed by the

agency because Mr. Pearson failed to timely initiate contact with

the EEOC. See generally Am. Compl., Ex. D, ECF No. 9-2.

OFO reversed the final agency action dismissing the

complaint. Am. Compl., Ex. E, ECF No. 9-3. OFO reasoned that

although all of the specific examples of racial and disability

discrimination cited by DOT in its dismissal occurred well before

the 45-day limit, Mr. Pearson “alleged discriminatory events from

2014 through his departure from Agency employment on October 30,

2016.”

. OFO explained that because the incidents that

make up a hostile environment claim collectively constitute one

unlawful employment practice, the entire claim is actionable, as

long as at least one incident that is part of the claim occurred

within the filing period.

. OFO ruled that “various

incidents comprising Mr. Pearson’s hostile work environment claim

occurred within the 45-day period preceding [Mr. Pearson’s] EEO

counselor contact.”

Specifically, OFO explained that Mr.

Pearson noted that although DOT had an official policy of not

6 granting same-day requests for leave/telework, another employee

regularly requested such leave.

OFO referenced an October 20,

2016 email in which an employee expressed her intention to

telework and take leave on that same day.

.

As to the disability claim, OFO stated that Mr. Pearson’s

complaint could be construed as a denial of a reasonable

accommodation, or as an agency action that caused him to cease

receiving a reasonable accommodation earlier than contemplated.

. OFO explained that “because an employer has an ongoing

obligation, to provide a reasonable accommodation, failure to

provide such an accommodation constitutes a violation each time

the employee needs it.”

(citation omitted). OFO remanded the

matter to DOT for further processing and investigation in

accordance with OFO’s order.

at 9–10. OFO also informed Mr.

Pearson of his right to file a civil action on the underlying

complaint.

. If a civil action is filed, the

administrative proceedings would be terminated.

(citing

).

Rather than take his chances with DOT, Mr. Pearson filed a

complaint in this Court. Mr. Pearson failed to respond to

defendant’s first motion to dismiss but subsequently filed an

amended complaint alleging several new claims. Am. Compl., ECF No.

8. Defendant has filed a renewed motion to dismiss which is now

ripe for adjudication. Def.’s Mot. to Dismiss, ECF No. 15.

7 II. Legal Standard

Both the Rehabilitation Act and Title VII claims impose

administrative exhaustion requirements. The exhaustion requirement

under the Rehabilitation Act is jurisdictional, and therefore

reviewed under the standard set forth in Federal Rule of Civil

Procedure 12(b)(1), when a plaintiff “fail[s] to file an

administrative complaint or to obtain any administrative decision

at all.” Doak v. Johnson,

. However, when a

plaintiff allegedly fails to exhaust their administrative

remedies due to a failure to comply with a regulatory requirement

the defect is not jurisdictional, and therefore reviewed under the

standard set forth in Rule 12(b)(6).

The Title VII exhaustion

requirement, “though mandatory, is not jurisdictional,” and

therefore the alleged failure to do so should also be analyzed

under Rule 12(b)(6). Douglas v. Donovan,

, 556 n.4

(D.C. Cir. 2009).

On a motion to dismiss for failure to state a claim upon

which relief can be granted pursuant to Rule 12(b)(6), the court

will dismiss a claim if plaintiff’s complaint fails to plead

“enough facts to state a claim for relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly,

(2007).

To survive a motion to dismiss, the language in the complaint must

“possess enough heft to ‘sho[w] that the pleader is entitled to

relief.’” Twombly,

(citing Fed. R. Civ. P.

8 8(a)(2)). A court need not deny a motion to dismiss or convert it

to a summary judgment motion simply because it refers to materials

outside the pleadings if the materials are attached or referred to

in the complaint. Vassar v. McDonald,

(D.D.C. 2016).

III. Analysis

Federal law protects federal employees from discrimination on

the basis of their race or disability in employment. See

(disability); 42 U.S.C. § 2000e–2 (race). If a federal

employee wishes to bring suit against his or her employer, the

employee must first “navigate a maze of administrative processes.”

Niskey v. Kelly,

(D.C. Cir. 2017).

The procedures are the same for claims under both Title VII

and the Rehabilitation Act.

(a) (describing

the same procedure for claims under either statute). First, “[a]n

aggrieved person must initiate contact with a Counselor within 45

days of the date of the matter alleged to be discriminatory or, in

the case of personnel action, within 45 days of the effective date

of the action.”

(a). The 45-day period begins

to run when an employee has a “reasonable suspicion” of a

discriminatory action. Adesalu v. Copps,

(D.D.C. 2009). If the matter is not resolved informally, the

counselor shall inform the employee in writing of the right to

sue, and the employee must file a formal complaint of

9 discrimination with the agency. See

(d),

1614.106(a)-(c); Bowie v. Ashcroft,

(D.D.C.

2003). The agency must then investigate the matter, after which

the complainant may demand an immediate final decision from the

agency or a hearing before an EEOC administrative judge. See

(e)(2), 1614.108(f). A complainant may file a

civil action within 90 days of receiving a final decision from the

agency or after a complaint has been pending before the EEOC for

at least 180 days. See 42 U.S.C. § 2000e–16(c);

; Price v. Bernanke,

(D.C. Cir. 2006).

Defendant moves to dismiss all of Mr. Pearson’s claims based

on one theory: Mr. Pearson failed to exhaust administrative

remedies because all acts on which he claims discrimination

occurred before the 45-day window. See generally Def.’s Mot. to

Dismiss, ECF No. 15. The Court addresses each claim in turn.

A. Rehabilitation Act Claim

“The exclusive remedy for federal employees alleging that

federal agencies engaged in disability discrimination is Section

501 of the Rehabilitation Act” Rand v. Geithner,

(D.D.C. 2009). A federal employee “may file a . . .

Rehabilitation Act action in federal court only after exhausting

their administrative remedies before the relevant federal agency

for each allegedly discriminatory act.” Mahoney v. Donovan,

(D.D.C. 2011), abrogated on other grounds, Doak,

10

.

Relevant to this case, the Rehabilitation Act requires that

an employee first initiate the administrative process by notifying

an EEO counselor within 45 days of the alleged discriminatory act.

See

(a)(1); see also Rand,

. Any allegations that are not timely raised with an EEO

counselor “cannot form the basis for a subsequent suit.” Mohmand

v. Broad. Bd. of Governors, No. CV 17-618,

, at *4

(D.D.C. Sept. 30, 2018)(citing Mount v. Johnson,

(D.D.C. 2014)). “When an employee alleges that he or she

was the victim of a discrete or discriminatory act, the timeliness

inquiry focuses on that particular act.”

(citing Nat'l R.R.

Passenger Corp. v. Morgan,

(2002)).

“Importantly, ‘discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in [a]

timely’ manner in the administrative process.”

(citation

omitted).

It is undisputed that Mr. Pearson made initial contact with

an EEO counselor on October 25, 2016, and, therefore, he only

timely exhausted “discrete discriminatory act[s]” that occurred

within 45 days of this date. See

(a)(1).

Accordingly, this Court may review any conduct that occurred on or

after September 10, 2016-- 45 days before Mr. Pearson made initial

contact. See Morgan,

. However, Mr. Pearson has not

11 identified in his administrative complaint any discriminatory

conduct that occurred within the relevant time frame. In Mr.

Pearson’s administrative complaint, he stated that he was denied

reasonable accommodations from “September 2014 to November 2014.”

Am. Compl., Ex. B, ECF No. 9-1 at 4. Even taken as true, Mr.

Pearson had 45 days from the time when he was denied a reasonable

accommodation to make an initial contact with the EEO counselor.

He did not do so until well over a year later. 5

The only alleged incident identified in Mr. Pearson’s

complaint that falls within this time-frame is the allegation that

although DOT had a policy of not approving leave and telework

requested on the same day, a new employee regularly made such

requests whereas Mr. Pearson’s similar request on July 3, 2014 was

denied. Am. Compl., Ex. A, ECF No. 9 at 20. It appears that OFO

was persuaded that this incident brought Mr. Pearson within the

45-day window because Mr. Pearson attached an “October 20, 2016

email from [the other employee] reflecting her intention to

telework and take leave on that same day.” Am. Compl., Ex. E, ECF

No. 9-3 at 8. However, this incident relates to Mr. Pearson’s

allegation that he was denied a reasonable accommodation in July

5 In Mr. Pearson’s opposition to the motion to dismiss he concedes that “the facts and claims in [his] EEO complaint are evidence that Defendant denied [his] request for reasonable accommodation [from] August 2 to December 25, 2015.” Pl.’s Opp’n, ECF No. 17 at 23. Under this calculation he would have had 45 days (i.e. January 20, 2016) to make an initial contact with the EEO counselor. He did not do so until ten months later. 12 2014 as evidence by his explicit reference to his July 3, 2014

leave request date. Am. Compl., Ex. A, ECF No. 9 at 20 (DOT “has a

policy of not approving leave and telework on the same day as

exhibited by Mr. Pearson’s leave that was disapproved on

7/3/14.”). As such, this incident relates to an alleged

discriminatory act that occurred two years-prior to when Mr.

Pearson made initial contact with the EEO counselor. Therefore,

the discrete discriminatory act was well outside the 45-day time

requirement.

OFO noted that in Mr. Pearson’s formal complaint that he

“provided a chronological narrative of alleged discriminatory

events from 2014 through his departure . . . on October 30, 2016.”

Am. Compl., Ex. E, ECF No. 9-3 at 8. The example cited by OFO is

Mr. Pearson’s allegation that he was subject to coercive questions

causing him to “end his ‘reasonable accommodation for telework

early.’”

OFO also noted that because an employer has an

ongoing obligation to provide reasonable accommodations, the

failure to do so constitutes a violation every time an employee

needs the accommodation.

(citations omitted). The problem with

this reasoning is that there is nothing in the record that

suggests that Mr. Pearson requested an accommodation at any point

in 2016, or that he was denied one. In fact, Mr. Pearson

explicitly states that the dates on which he was denied reasonable

accommodations were from “September 2014 to October 2014.” Am.

13 Compl., ECF No. 8 at 2. 6 Mr. Pearson, however, did not contact an

EEO counselor until over a year later.

Mr. Pearson has failed to allege any discriminatory conduct

within the 45-day requirement. Accordingly, the Court concludes

that he has failed to exhaust his administrative remedies and

GRANTS the defendant's motion to dismiss Mr. Pearson’s

Rehabilitation Act claim.

B. Title VII Claim

Mr. Pearson’s next claim is that DOT discriminated against

him on the basis of race in violation of Title VII. Under Title

VII, a plaintiff is also required to exhaust his administrative

remedies before seeking relief from a federal court. Bowden v.

United States,

(D.C. Cir. 1997) (“[Title VII]

complainants must timely exhaust these administrative remedies

before bringing their claims to court.”).

A plaintiff alleging a Title VII discrimination claim is

subject to the same exhaustion requirements described above,

namely a plaintiff must: (1) contact his agency’s EEO office

within 45 days of the action giving rise to his discrimination

claim,

(a)(1); and (2) file a formal complaint

of discrimination before filing suit in federal court.

; see also 42 U.S.C. § 2000e-16(c) (Title VII statutory

6 There is a discrepancy between the dates Mr. Pearson cites in his amended complaint, September to October 2014, and the dates cited in the administrative filings, September to November 2014. In either case, both dates fall well outside the 45-day deadline. 14 timeliness requirements equivalent to EEOC rules 1614.407(a) and

(b)).

Mr. Pearson alleges three discrete discriminatory acts. The

first act occurred on July 3, 2015 when his leave request was not

approved. The second act was on or about April 19, 2016, when he

was not selected for a promotion. 7 The last occurred on July 14,

2016, when he received his performance rating. The 45-day

deadlines for each claim would have accrued on August 18, 2015,

August 5, 2016, and August 30, 2016, respectively. Mr. Pearson’s

initial contact post-dated all of these deadlines, and therefore

he failed to meet the 45-day requirement for any of his claims.

OFO was apparently convinced that Mr. Pearson’s claims

survived because he alleged a hostile work environment. See Am.

Compl., Ex. E, ECF No. 9-3. The Supreme Court has held that a

person alleging a hostile work environment will not be time barred

if all acts constituting the claim are part of the same unlawful

practice, and at least one act falls within the filing period.

National Railroad Passenger Corp. v. Morgan,

(2002). In this case, even if Mr. Pearson had properly alleged a

hostile work environment, at least one of the alleged

discriminatory acts would need to fall within the 45-day initial

contact period. However, he has alleged no discriminatory acts

7 Again, Mr. Pearson provides inconsistent dates for when he was denied the promotion. However, neither the April 19, 2016 date or the July 16, 2016 date fell within the 45-day requirement. 15 that fall within the timeframe. Because none of Mr. Pearson’s

alleged acts of discrimination fall within the 45-day timeframe,

his hostile work environment claim must fail. See Morgan,

. Therefore, the Court GRANTS the defendant's motion to dismiss

Mr. Pearson’s Title VII claim.

C. Miscellaneous Claims

In both Mr. Pearson’s amended complaint and his opposition to

DOT’s renewed motion to dismiss, Mr. Pearson asserts several new

claims not considered by EEO. The three new claims in the amended

complaint are as follows: (1) a claim for retaliation; (2)

violations of several Executive Orders and agency policies which

were also a breach of contract; and (3) violation of the

Constitution. A fourth new claim, one for violation of the Privacy

Act, was referenced in Mr. Pearson’s opposition to DOT’s renewed

motion to dismiss. See Pl.’s Opp’n, ECF No. 17 at 35 (referencing

“privacy claims”). Because Mr. Pearson failed to present these

claims to the appropriate agency, the Court may not consider them.

“A plaintiff fails to exhaust her administrative remedies

when the complaint she files in federal court includes a claim

that was not raised in the administrative complaint.” Mogenhan v.

Shinseki,

(D.D.C. 2009). As the D.C.

Circuit has explained: “[A]llowing a complaint to encompass

allegations outside the ambit of the predicate EEOC charge would

circumvent the EEOC's investigatory and conciliatory role, as well

16 as deprive the charged party of notice of the charge, as surely as

would an initial failure to file a timely EEOC charge.” Marshall

v. Fed. Express Corp.,

(D.C. Cir. 1997). This

exhaustion requirement is not a “mere technicality,” but “serves

the important purposes of giving the charged party notice of the

claim and ‘narrow[ing] the issues for prompt adjudication and

decision.’” Park v. Howard Univ.,

(D.C. Cir.

1995).

Mr. Pearson argues that he was retaliated against for filing

an anonymous complaint to the EEOC. See Am. Compl., ECF No. 8 at

19. This claim is cognizable under two theories. One theory is a

Title VII retaliation claim. For the reasons stated above, Mr.

Pearson failed to exhaust this claim when he failed to present it

in his administrative complaint in a timely manner. See supra at

14–15. The second theory is a violation of the Whistleblower

Protection Act,

Stat. 16 (1989)(codified

in scattered sections of 5 U.S.C.). However, such a claim may not

be brought directly in federal court. See Stella v. Mineta,

(D.C. Cir. 2002)(“Under no circumstances does the

[Whistleblower Protection Act] grant the District Court

jurisdiction to entertain a whistleblower cause of action brought

directly before it in the first instance.”). Accordingly, the

Court GRANTS the defendant's motion to dismiss the retaliation

claim.

17 Mr. Pearson next argues that DOT violated several

Presidential Executive Orders, DOT policies, contracts, and the

Constitution. See Am. Compl., ECF No. 8 at 22. Mr. Pearson has

also failed to exhaust these claims. The Civil Service Reform Act

of 1978 (“CSRA”), Pub. L. No. 95–454,

, provides an

exclusive system for challenging personnel actions taken against

covered federal employees. Grosdidier v. Chairman, Broadcasting

Bd. of Governors,

(D.C. Cir. 2009) stating the

CSRA is “comprehensive and exclusive”). The CSRA also applies to

constitutional challenges. Elgin v. Department of Treasury,

(2012)([B]ecause the MSPB's expertise can otherwise be

“brought to bear” on employee appeals that challenge the

constitutionality of a statute, we see no reason to conclude that

Congress intended to exempt such claims from exclusive review

before the MSPB.”).

Under the CSRA, the plaintiff has the right to a hearing

before the Merit System Protection Board (“MSPB”) and is also

entitled to judicial review in the United States Court of Appeals

for the Federal Circuit if the MSPB issues an adverse final

decision. See Elgin,

(explaining statutory scheme).

Because Mr. Pearson failed to bring his claims through the CSRA

before filing in District Court, the Court GRANTS the defendant's

motion to dismiss Mr. Pearson’s various claims related to the

violation of agency orders, breach of contract, violation of

18 Executive Orders, and constitutional claims.

Finally, in his opposition, Mr. Pearson alleges that DOT

attempted to force him to disclose protected confidential

information in violation of the Privacy Act of 1974, 5 U.S.C. §

552a. Pl.’s Opp’n, ECF No. 17 at 15, 29, 39. As with the other

claims, this is the first time Mr. Pearson has brought this claim.

Because Mr. Pearson failed to exhaust his administrative remedies

the Court GRANTS the defendant's motion to dismiss Mr. Pearson’s

Privacy Act claim. See Haase v. Sessions,

(D.C.

Cir. 1990)(explaining Privacy Act exhaustion requirements).

IV. Conclusion

For the foregoing reasons, the Court GRANTS defendant’s

renewed motion to dismiss. An appropriate order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge February 28, 2019

19