UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEFF GULAKOWSKI,

Plaintiff,

v. Civil Action No. 19-32 (JEB) WILLIAM P. BARR, Attorney General, U.S. Department of Justice,

Defendant.

MEMORANDUM OPINION

Plaintiff Jeff Gulakowski, a longtime employee of the Federal Bureau of Investigation,

brings this suit alleging violations of the Rehabilitation Act,

et seq. He

maintains that the FBI denied him reasonable accommodations for his mental disability, created

a hostile work environment, and discriminated and retaliated against him through a series of

workplace incidents. The Government now moves for partial dismissal on two grounds. First, it

argues that some allegations in support of Plaintiff’s specific claims are time barred; second, it

asserts that the pattern of incidents does not constitute a hostile work environment. Concluding

that certain allegations are indeed too late, but that Plaintiff has alleged sufficient facts — if just

barely — to state hostile-work-environment claims, the Court will grant in part and deny in part

Defendant’s Motion.

I. Background

The Court, as it must at this stage, draws the facts from the First Amended Complaint.

See Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000). Gulakowski is a

Management and Program Analyst (MAPA) at the FBI, where he has worked since 1987. See

1 Am. Compl., ¶ 14. In 2012, he experienced marital difficulties, began caring for a friend who

had suffered a stroke, and struggled with a family member going through anxiety and depression.

Id., ¶ 19. As a result, he likewise started suffering from “major depressive disorder and severe

anxiety” — a mental disability — which limited his ability to sleep, concentrate, and

communicate. Id., ¶¶ 20−22. Still battling his disability in 2017, Gulakowski requested that the

FBI accommodate him in the form of “additional time to work on projects and to work at home

one day a week.” Id., ¶ 7. The Bureau denied the request. Id. Things only got worse from

there. Over the next 18 months, he was demoted, placed on a disciplinary procedure, pressed to

cancel a medical appointment, subjected to “demeaning statements” from his supervisor, and

denied a timely promotion and further requests for reasonable accommodations. Id., ¶¶ 7, 10.

Because of these incidents, Gulakowski filed two formal complaints with an Equal

Employment Opportunity counselor — in April 2017 and in March 2018. Although the

allegations underpinning each complaint differ, he principally asserted in both that the FBI had

failed to accommodate his disability, created a hostile work environment, discriminated against

him based on his disability, and retaliated against him for engaging in protected activity. Id., ¶¶

6−7, 9−10.

Plaintiff then filed this suit against the Attorney General, asserting three counts under the

Rehabilitation Act. Count I alleges that Defendant failed to provide reasonable

accommodations; Count II claims that it discriminated against and subjected Gulakowski to a

hostile work environment because of his disabilities; and Count III alleges that the FBI retaliated

against Gulakowski’s complaints by discriminating against him and subjecting him to a hostile

work environment. Id., ¶¶ 75−82.

2 Defendant has now filed a Motion for Partial Dismissal. The Attorney General seeks

dismissal of those portions of Counts II and III that relate to the hostile-work-environment claim.

See Mot. at 8–10. He also moves for dismissal of those allegations in Counts I, II, and III that

are time barred. Id. at 7–8.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly,

(2007), “a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009)

(internal quotation omitted). In weighing a motion to dismiss, a court “may consider only the

facts alleged in the complaint, any documents either attached to or incorporated in the complaint

and matters of which [the court] may take judicial notice.” Equal Emp’t Opportunity Comm’n v.

St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997). The Court “must treat the

complaint’s factual allegations as true and must grant [the] plaintiff ‘the benefit of all inferences

that can be derived from the facts alleged.’” Sparrow,

(quoting Schuler v.

United States,

(D.C. Cir. 1979)). It need not accept as true, however, “a legal

conclusion couched as a factual allegation” or an inference unsupported by the facts set forth in

the Complaint. Trudeau v. FTC,

(D.C. Cir. 2006) (quoting Papasan v. Allain,

(1986)).

Even at the Rule 12(b)(6) stage, a court can review “documents attached as exhibits or

incorporated by reference in the complaint” or “documents upon which the plaintiff’s complaint

necessarily relies even if the document is produced not by the plaintiff in the complaint but by

3 the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs.,

(D.D.C. 2011) (citations omitted); see also Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015) (“A district court may consider a document that a complaint

specifically references without converting the motion into one for summary judgment.”). In this

case, Gulakowski did not attach the Record of Investigation (ROI), Record of Consultation

(ROC), or Office of Equal Employment Opportunity Affairs (OEEOA) Correspondence Files

regarding his EEO complaints to his Amended Complaint. Defendant has included valid

excerpts of each with its Motion to Dismiss, see Mot., Exhs. A–C, so the Court may properly

consider those undisputed government records, the authenticity of which is not challenged.

III. Analysis

In considering Defendant’s Partial Motion to Dismiss, the Court begins with the hostile-

work-environment claims, as pled in Counts II and III. It will then analyze whether the

allegations in any counts are untimely.

A. Hostile Work Environment

The Rehabilitation Act bars the Government from discriminating against its employees

with respect to, among other things, their “terms, conditions, or privileges of employment”

because of that person’s disability. See

(a), (d) (incorporating standard for

discrimination set forth in Americans with Disabilities Act,

(a)).

The Supreme Court has read that language broadly, determining that “[t]he phrase ‘terms,

conditions, or privileges of employment’ evinces a congressional ‘intent to strike at the entire

spectrum of disparate treatment’ . . . in employment, which includes requiring people to work in

a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc.,

(1993) (quoting 42 U.S.C. § 2000e–2(a)(1); then quoting Meritor Savings Bank, FSB v. Vinson,

(1986)). The D.C. Circuit, in turn, has extended that reasoning in holding that “a

hostile work environment can [also] amount to retaliation under the [antidiscrimination laws].”

Baird v. Gotbaum,

(D.C. Cir. 2011) (emphasis added) (citation omitted);

see also Ellis v. Mattis,

, at *5 (D.D.C. Nov. 28, 2018) (assuming

Rehabilitation Act permits hostile-work-environment claim based on disability). Gulakowski

pursues both avenues here, alleging that his employer created a hostile work environment

because of his disability (Count II) and retaliated against him for both requesting reasonable

accommodations and filing an EEO complaint (Count III). See Am. Compl., ¶¶ 77–82.

To prevail on a hostile-work-environment claim under either theory, “a plaintiff must

show that his employer subjected him to ‘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.’” Baloch v. Kempthorne,

(D.C. Cir. 2008)

(quoting Harris,

). “To determine whether a hostile work environment exists, the

court looks to the totality of the circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it interferes with an employee’s work

performance.”

(citing Faragher v. City of Boca Raton,

, 787–88 (1998)). “The

Supreme Court has made it clear that ‘conduct must be extreme to amount to a change in the

terms and conditions of employment.’” George v. Leavitt,

(D.C. Cir. 2005)

(quoting Faragher,

).

Many of the incidents Gulakowski claims created a hostile environment are laid out in his

EEO complaints, the first of which he filed in April 2017. See Am. Compl., ¶ 6; Mot., Exh. A

(April 2017 ROI) at FBI000041; see also Opp. at 6–7. The OEEOA ultimately agreed to

investigate the following allegations:

5 1. From February 20, 2017, to the present[,] his requests for an accommodation, to include additional time to work on projects and to work at home one day a week, have been denied;

2. On January 31, 2017, his Unit Chief questioned him about a private conversation [Plaintiff] had with his immediate supervisor;

3. On or about March 31, 2017, he began receiving telephone calls from employees who were saying they heard he was being demoted;

4. On April 5, 2017, he became aware that the [Unit Chief] informed a Supervisory Surveillance Specialist in mid-March 2016 that he was going to demote Plaintiff;

5. On May 11, 2017, he was officially demoted from GS-14 step 8 to GS-12 step 10 and his supervisor made “demeaning statements” throughout the process;

6. On July 12 and 13, 2017, the [Unit Chief] intimidated and harassed both him and one of his potential witnesses [who had participated as a witness in Plaintiff’s EEO complaint]; and

7. On August 23, 2017, he learned that he would be permanently reassigned to [redacted] effective September 4, 2017.

Mot., Exh. B (OEEOA Correspondence File) at FBI0000266–67; see also Opp. at 6–7; Am.

Compl., ¶¶ 7, 41–49, 58, 60.

About a year later, in March 2018, Gulakowski filed his second EEO complaint. See

Am. Compl., ¶ 9; Mot., Exh. C (March 2018 ROC) at FBI000333–36. After several

amendments by Gulakowski, the OEEOA agreed to investigate the following allegations:

1. As of November 16, 2017, he was placed on a disciplinary procedure requiring him to email the Unit Chief (UC) of his arrival and departure time to and from work every day;

2. Since December 4, 2017, he has received numerous harassing emails from his UC;

3. On December 17, 2017, he was forced to cancel his doctor’s appointment;

6 4. Since May 14, 2018, he has not received a promotion to a General Schedule (GS) 13 level; and

5. On June 22, 2018, his requests for reasonable accommodation were denied.

March 2018 ROC at FBI000333–36; see also Opp. at 6–7; Am. Compl., ¶¶ 10, 62–67.

The current suit not only incorporates these incidents, but Gulakowski further alleges that

his employer created a hostile environment by “downgrad[ing] his duties to primarily

maintenance tasks.” Opp. at 6 (citing Am. Compl., ¶¶ 68–70). He also points to other times

when he was denied reasonable accommodations, see Am. Compl., ¶¶ 58, 60, and assigned

projects with unreasonable timelines.

¶¶ 32–37. A number of incidents he cites occurred

before February 2017, a date whose relevance will become plain shortly.

Defendant nevertheless asserts that Plaintiff’s allegations “are not sufficiently severe or

pervasive to state a claim for hostile work environment.” Mot. at 10. Affording Gulakowski the

benefit of all inferences at this stage, the Court believes that the allegations contained in the

Amended Complaint barely clear the high bar required to establish a hostile work environment.

He has identified a slew of incidents involving his first- and second-line supervisors and alleged

that they denied his repeated accommodation requests, wrongfully demoted him, ignored his

request to leave work for a medical appointment, delayed his promotion, downgraded his duties,

required him to alert his supervisors whenever he arrived at and before he left work, and

intimidated one of his colleagues for serving as a witness in his April 2017 EEO complaint. See

Floyd v. Lee,

, 517–18 (D.D.C. 2015) (“The prolonged denial of a reasonable

accommodation can underlie a hostile work environment claim when ‘all the circumstances’

would support such a claim.”) (citation omitted). This is enough for now. To survive summary

judgment, however, these allegations must ultimately be supported by record evidence, and

7 Plaintiff will need to show that his employer was actually motivated by his disability or his

engaging in protected activity.

B. Time-Barred Allegations

Next up is Defendant’s argument that certain allegations set out in Gulakowski’s EEOC

complaints are time barred. See Mot. at 7–8. Title 29 of the Code of Federal Regulations

describes the administrative process for filing discrimination complaints against the federal

government. First, one who believes he has been subject to discrimination by his government

employer “must consult a Counselor prior to filing a complaint in order to try to informally

resolve the matter.”

(a). “An aggrieved person must initiate contact with a

Counselor within 45 days of the date of the matter alleged to be discriminatory . . . .”

§ 1614.105(a)(1). A court may not consider discrimination claims that arise after 45 days. See

Steele v. Schafer,

(D.C. Cir. 2008).

To be sure, courts “distinguish[] between discrete and ongoing discriminatory acts for the

purpose of this exhaustion requirement.” Gordon v. Napolitano,

(D.D.C.

2011). The Supreme Court has explained that “discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely filed charges. Each

discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore,

must be filed within the [45]-day time period after the discrete discriminatory act occurred.”

Nat’l R.R. Passenger Corp. v. Morgan,

(2002). “On the other hand, ongoing

discriminatory acts, such as those of hostile work environment, ‘are different in kind from

discrete acts [because t]heir nature involves repeated conduct.’” Gordon,

(quoting Morgan,

). “For purposes of timeliness, the ‘unlawful employment

practice’ ‘cannot be said to occur on any particular day. It occurs over a series of days or

8 perhaps years . . . .’” Ashraf-Hassan v. Embassy of France,

(D.D.C.

2012) (quoting Morgan,

). “It does not matter . . . that some of the component

acts of the hostile work environment fall outside the statutory time period. Provided that an act

contributing to the 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.” Morgan,

.

With that windup, the Court will now assess Gulakowski’s EEOC complaints in turn.

1. April 2017 EEO Complaint

The parties agree that Plaintiff initially contacted an EEO counselor on April 6, 2017,

setting forth certain allegations. See Am. Compl., ¶ 5; Mot. at 2; April 2017 EEO complaint at

FBI000045. Any discrete discriminatory acts occurring before February 20, 2017 — that is, 45

days before April 6 — would be untimely. More specifically, any allegations surrounding

Gulakowski’s performance review and placement on a performance-improvement plan, the

denial of accommodations, unreasonable work deadlines, and the conversations between Plaintiff

and his Unit Chief that occurred before February 20, 2017, are barred as too late. See Am.

Compl., ¶¶ 25–41. As such, Defendant argues, these allegations cannot be used to support the

discrimination and retaliation claims in Counts I, II, and III. See Reply at 2. The Court agrees,

but only to the extent Plaintiff uses these pre-February 20, 2017, allegations as support for

“discrete discriminatory acts.” Morgan,

. Put differently, these earlier incidents

are untimely with respect to Gulakowski’s failure-to-accommodate (Count I), disability-

discrimination (Count II), and retaliation (Count III) claims. See Gordon,

.

On the other hand, if Plaintiff relies on some or all of these incidents to support his hostile-work-

9 environment theories (Counts II and III), they may be considered for those claims, which the

Court has now allowed to go forward. See Ashraf-Hassan, 878 F. Supp. 2d at 171–72.

2. March 2018 EEO Complaint

As for the second EEO complaint, the parties dispute the date on which Gulakowski

“initiated contact” with the EEO Counselor. Defendant contends that January 4, 2018, sets the

45-day window. See Reply at 1–2; see also March 2018 ROC at FBI000333–34 (reflecting

January 4, 2018, as “Date of Initial Contact”). Plaintiff, on the other hand, maintains that he

initiated contact on December 18, 2017, the date on which “his attorney[] contacted the EEO

office regarding additional amendments to [his April 2017 Complaint].” Opp. at 5 (citing Am.

Compl., ¶ 8). About two weeks later, on January 3, 2018, “the EEO office responded that he

would have to contact a counselor and start a new EEO complaint.”

(citing Am. Compl., ¶ 8).

So, on the following day, January 4, Plaintiff alleges that he “contacted an EEO counselor.” Am.

Compl., ¶ 9; see Opp. at 3 n.1 (“The correct date is January 4, 2018.”).

The operative date is of some consequence. If Defendant is correct, then any claims

deriving from discrete discriminatory acts occurring before November 20, 2017 — that is, 45

days before January 4, 2018 — would be untimely. By contrast, if Plaintiff is right, then none of

the allegations in his second EEO complaint would be time barred as they all allegedly occurred

after the corresponding November 3, 2017, cutoff date. In effect, the parties’ disagreement is

whether Plaintiff can allege that he was placed on a disciplinary procedure as of November 16,

2017, see Am. Compl., ¶ 10, or as of November 20, 2017. See Mot. at 5, 9.

To resolve this issue, the Court must address what it means to “initiate contact.” “The

EEOC has interpreted ‘initiate contact’ to require that an employee who believes that she has

been the subject of discrimination must timely (1) contact an agency official ‘logically

10 connected’ with the EEO process (not necessarily a Counselor) and (2) demonstrate an intent to

begin the EEO process.” Boone v. Clinton,

(D.D.C. 2009) (citation

omitted); accord Miller v. Hersman,

, 11 n.1 (D.C. Cir. 2010); EEOC Management

Directive 110, at ch. 2, § I.A, n.1. Here, Plaintiff alleges that on December 18, 2017, his counsel

“contacted the EEO office regarding additional amendments” to his April 2017 complaint. See

Am. Compl., ¶ 8. And the EEOC has found that an employee’s representative is capable of

initiating contact with an EEO counselor. See Complainant v. McHugh, EEOC No.

0120140932,

, at *2 (June 10, 2014); Domingo v. West, EEOC No. 01965901,

, at *3 (June 27, 1997). Without the benefit of discovery, however, the Court

cannot say whether Plaintiff (via his lawyer) reached out to a Counselor on December 18,

intending to begin the EEO process. See Welsh v. Hagler,

, 220–22 (D.D.C.

2015) (analyzing communications to determine whether they showed requisite intent). At this

juncture, and affording Gulakowski the benefit of all factual disputes, the Court determines that

the November 16, 2017, allegation survives dismissal.

Finally, given the discussion above, Defendant argues that, at a minimum, incidents that

occurred between August 23, 2017, and November 2, 2017, are time barred. See Reply at 2; see

also Am. Compl., ¶¶ 56–58. The Court agrees, and such incidents will be dismissed from

Gulakowski’s failure-to-accommodate (Count I), disability-discrimination (Count II), and

retaliation (Count III) claims.

IV. Conclusion

For the foregoing reasons, the Court will grant in part and deny in part Defendant’s

Partial Motion to Dismiss. A separate Order consistent with this Opinion will be issued this day.

11 /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: September 18, 2019

12