UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________________ ) DEBORAH MORRIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-0016 (EGS) ) OFFICE OF PERSONNEL MANAGEMENT, ) ) Defendant. ) ______________________________________ )

MEMORANDUM OPINION

This matter is before the Court on defendant’s Motion to Dismiss

(ECF No. 20) and plaintiff’s “Motion to Rule on Constitutional

Questions of Office of Personnel Management, et. al. Shield of

Sovereign Immunity Given Their Systemic Paradigm Hiring Structure –

Does or Does Not Violate Plaintiff[’s] Constitutional Rights of ‘Equal

Protection’ Under the Law” (ECF No. 26). For the reasons discussed

below, the Court grants the former and denies the latter.

I. BACKGROUND

Plaintiff filed her original complaint (ECF No. 1, “Compl.”) on

January 2, 2020. After plaintiff filed a document (ECF No. 14) later

identified (ECF No. 16) as a supplement to her original complaint, by

Minute Order on July 20, 2020, the Court directed plaintiff to file an

amended complaint setting forth in a single pleading the allegations

of her original complaint and its supplement. Plaintiff filed the

amended complaint (ECF No. 19, “Am. Compl.”) on August 5, 2020.

Plaintiff, who was born in 1950, see Compl. at 4, explains that

she had retired for health reasons, Am. Compl. at 7. Now that her “health is stable [she] desir[es] work to sustain [her] Life.” Id.

She allegedly has a “severe physical disability and can be considered

for employment under Schedule A hiring authority 5 CFR 213.3102(u).”

Id., Attach. IV (ECF No. 19-1 at 24); see id. at 7.1

Plaintiff alleges that she has applied for employment with the

federal government via USAJOBS.com, the website of the United States

Office of Personnel Management (“OPM”), see Am. Compl. at 3-5, and was

not selected for any, see id. at 5. According to plaintiff, the

algorithm OPM applies is biased against applicants who are older,

disabled, or who are not currently federal employees. See id. She

finds the application process “very [c]onfusing and frustrating,” and

“complicated applications [have] caused [her] enormous problems with

comprehension[] as well as accessibility[.]” Id. at 10-11. Plaintiff

claims to have met all the qualifications for each position for which

she applied, yet she neither was interviewed nor selected for a

position. See id. at 12. As a result, plaintiff claims, OPM “has

caused [her] undue Stress, Limitations and Sadness[] – depriving [her]

of [her] ‘NATURAL RIGHTS’ – ‘GOD GIVEN RIGHTS’ under the U.S.

Constitution – an American Citizen who is 70.” Id. at 13 (emphasis in

original). She demands compensation of $50 million for the alleged

denial of her ‘“Natural Right’ – ‘God Given Right’ – As set forth

within the Constitution = Natural and Unalienable Rights – ‘LIFE,

1 Under Schedule A, a government “agency may appoint, on a permanent, time-limited, or temporary basis, a person with an intellectual disability, a severe physical disability, or a psychiatric disability according to the provisions” set forth in the regulation.

(u).

2 LIBERTY AND THE PURSUIT OF HAPPINESS’.”

(emphasis in

original).

II. DISCUSSION

A. Legal Standards

1. Dismissal for Lack of Subject Matter Jurisdiction

Because “[f]ederal courts are courts of limited jurisdiction, . .

. [i]t is . . . presumed that a cause lies outside this limited

jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994), and the plaintiff bears the burden of establishing a

basis for the Court’s jurisdiction, see Lujan v. Defenders of

Wildlife,

(1992). In assessing whether it has

jurisdiction, the Court “assume[s] the truth of all material factual

allegations in the complaint and construe[s] the complaint liberally,

granting plaintiff the benefit of all inferences that can be derived

from the facts alleged[.]” Am. Nat. Ins. Co. v. FDIC,

(D.C. Cir. 2011) (internal quotation marks and citations

omitted). However, the Court “need not limit itself to the

allegations of the complaint,” and “may consider such materials

outside the pleadings as it deems appropriate to resolve the question

[of] whether it has jurisdiction in the case.” Rann v. Chao,

(D.D.C. 2001).

2. Dismissal for Failure to State a Claim On Which Relief Can Be Granted

A plaintiff need only provide a “short and plain statement of

[her] claim showing that [she] is entitled to relief,” Fed. R. Civ. P.

8(a)(2), that “give[s] the defendant fair notice of what the . . .

claim is and the grounds upon which it rests,” Erickson v. Pardus, 551

, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly,

(2007)) (internal quotation marks omitted). A

complaint may be dismissed for failure to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a

Rule 12(b)(6) motion, the “complaint is construed liberally in the

plaintiff[’s] favor, and [the Court] grant[s] [a] plaintiff[] the

benefit of all inferences that can be derived from the facts alleged.”

Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994); see

Sparrow v. United Air Lines, Inc.,

(D.C. Cir.

2000). However, “the [C]ourt need not accept inferences drawn by

[the] plaintiff[] if such inferences are unsupported by the facts set

out in the complaint.” Kowal,

. Nor must the Court

accept “a legal conclusion couched as a factual allegation,” nor

“naked assertions devoid of further factual enhancement.” Ashcroft v.

Iqbal,

(2009) (internal quotation marks omitted);

see also Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,

, 16 n.4 (D.C. Cir. 2008) (noting that the D.C. Circuit has

“never accepted legal conclusions cast in the form of factual

allegations” (internal quotation marks omitted)).

A complaint survives a motion under Rule 12(b)(6) only if it

“contain[s] sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Iqbal,

. A claim is facially plausible “when the plaintiff pleads factual

content that allows the [C]ourt to draw [a] reasonable inference that

the defendant is liable for the misconduct alleged.”

(quoting

Twombly,

). “[A] complaint [alleging] facts that are

4 merely consistent with a defendant’s liability . . . stops short of

the line between possibility and plausibility of entitlement to

relief.”

(internal quotation marks omitted) (citing Twombly,

). Although a pro se complaint “must be held to less

stringent standards than formal pleadings drafted by lawyers,”

Erickson, 551 U.S. at 94 (internal quotation marks and citation

omitted), it too, “must plead ‘factual matter’ that permits the court

to infer ‘more than the mere possibility of misconduct,’” Atherton v.

District of Columbia Office of the Mayor,

(D.C.

Cir. 2009) (quoting Iqbal,

).

B. The Declaration of Independence

Defendant observes, see Mem. of P. & A. in Support of Def.’s Mot.

to Dismiss (ECF No. 20-1, “Def.’s Mem.”) at 7, that certain language

plaintiff adopts, such as the phrase “Life[,] Liberty, and the pursuit

of Happiness,” Am. Compl. at 14, is derived from the Declaration of

Independence. Because the Declaration of Independence “does not

confer jurisdiction upon the federal courts,” defendant moves to

dismiss the amended complaint for lack of subject matter jurisdiction.

Def.’s Mem. at 7-8.

To the extent plaintiff relies on the Declaration of Independence

as a basis for this Court’s jurisdiction, her reliance is misplaced.

See Coffey v. United States,

(E.D.N.Y. 1996)

(“While the Declaration of Independence states that all men are

endowed certain unalienable rights including ‘Life, Liberty and the

pursuit of Happiness,’ . . . it does not grant rights that may be

pursued through the judicial system.”); Bowler v. Welsh,

(D. Me. 1989) (“We have no jurisdiction over claims allegedly

arising under the Declaration of Independence.”).

C. Disability Discrimination

Defendant presumes, see Def.’s Mem. at 9, that a disability

discrimination claim would proceed under the Rehabilitation Act,

pursuant to which a federal government employer must take “affirmative

action . . . for the hiring, placement, and advancement of individuals

with disabilities,”

(b).

1. Exhaustion of Administrative Remedies

The Court may entertain a claim under the Rehabilitation Act only

if a plaintiff has raised the claim at the administrative level. See

Spinelli v. Goss,

(D.C. Cir. 2006) (remanding case

for dismissal of “Rehabilitation Act claim for lack of jurisdiction on

the ground that [plaintiff] failed to exhaust his administrative

remedy”); see also Taylor v. Small,

(D.C. Cir.

2003) (expressing “doubt the district court would have had

jurisdiction to entertain [Rehabilitation Act claim] because

[plaintiff] failed to exhaust her administrative appeal rights”). In

this sense, the Rehabilitation Act’s exhaustion requirement is

jurisdictional. Spinelli,

; see Doak v. Johnson,

(D.C. Cir. 2015) (noting that Spinelli “addressed the

jurisdictional consequence of a plaintiff’s wholesale failure to file

an administrative complaint or to obtain any administrative decision

at all”).

Applicable regulations require that a complainant “consult a

Counselor prior to filing a complaint in order to try to informally

6 resolve the matter,” and that such contact must occur “within 45 days

of the date of the matter alleged to be discriminatory[.]”

(a)(1). At most, plaintiff alleges she engaged in “Several

Hours and days of Mediations with EEOC Representative Leona Bedrossian

and DHHS of Equal Employment Opportunity Compliance and Operations

Director Cynthia Richardson-Cook.” Am. Compl. at 13. Presumably

“DHHS” refers to the U.S. Department of Health and Human Services.

Any consultation or mediation in which plaintiff may have engaged with

DHHS has no bearing on this case. DHHS is not a party defendant, and

in this case plaintiff alleges that OPM, not DHHS, discriminated

against her.

Because plaintiff does not demonstrate exhaustion of

administrative remedies as to OPM, this Court has no jurisdiction over

a Rehabilitation Act claim. See Koch v. White,

(D.C. Cir. 2014) (affirming dismissal of Rehabilitation Act claim for

failure to exhaust administrative remedies); see also

.

2. Allegations of the Amended Complaint

Even if plaintiff had exhausted a Rehabilitation Act claim,

defendant argues that the claim must fail. See Def.’s Mem. at 10-11.

Defendant points to plaintiff’s exhibits, see Am. Compl., Ex. (ECF No.

19-1 at 17-20, 45-53), indicating that she applied for positions at

the National Institutions of Health, Uniformed Services University of

the Health Sciences and DHHS. Defendant also proffers that plaintiff

applied for 105 positions posted by various agencies via USAJOBS.gov

between August 2019 and September 2020. See Def.’s Mem., Ex. (ECF No.

7 20-2). “[N]one of these positions were within OPM.”

.

Thus, defendant asserts, because “OPM . . . had no involvement in

employment determinations for positions outside OPM,” plaintiff fails

to state a Rehabilitation Act claim against OPM.

; see

.

In addition, defendant argues that plaintiff fails to allege that

she suffered an adverse employment because of her disability. See

. The “two essential elements of a discrimination claim [under

the Rehabilitation Act] are that (i) the plaintiff suffered an adverse

employment action (ii) because of the plaintiff’s . . . disability.”

Baloch v. Kempthorne,

(D.C. Cir. 2008) (citations

omitted). For purposes of this discussion, the Court presumes that

plaintiff has a disability as evidenced by her doctor’s certification.

See Am. Compl., Attach. IV. Missing from her amended complaint,

however, are any factual allegations from which to draw a reasonable

inference that OPM is liable for discriminating against plaintiff

because of a disability. Her general assertions, for example, of

“Failure To Accommodate . . . Disability In Plaintiff’s recruiting,

Applications submissions [and] processing,” Am. Compl. at 5, do not

suffice absent some allegation that plaintiff actually sought an

accommodation from OPM. Similarly, general assertions of systemic

discrimination, see id. at 12, do not support a claim that plaintiff

herself suffered an adverse employment action by OPM because of her

disability.

The Court concurs with defendant’s assessment that the complaint,

as amended, fails to state a Rehabilitation Act claim against OPM.

8 D. Age Discrimination

1. Exhaustion of Administrative Remedies

An age discrimination claim would proceed under the Age

Discrimination in Employment Act (“ADEA”), see

,

which requires that “[a]ll personnel actions affecting . . .

applicants for employment who are at least 40 years of age . . . be

made free from any discrimination based on age,” 29 U.S.C. § 633a(a).

Unlike a claim under the Rehabilitation Act, plaintiff’s apparent

failure to exhaust her administrative remedies does not deprive the

Court of jurisdiction. See Achagzai v. Broad. Bd. of Governors, No.

17-CV-612,

, at *4 (D.D.C. Sept. 30, 2018) (noting that

ADEA lacks a jurisdictional exhaustion requirement); Koch v. Walter,

(D.D.C. 2013) (“By contrast [with the

Rehabilitation Act], failure to exhaust under the ADEA and Title VII

is an affirmative defense, not a jurisdictional requirement.”); see

also

(a).

2. Allegations of the Amended Complaint

Exhaustion aside, defendant deems the amended complaint deficient

for its failure to allege facts to support an age discrimination

claim. See Def.’s Mem. at 12. Generally, “[t]o establish

a prima facie case under the ADEA, for a claim involving a failure to

hire, the plaintiff must demonstrate that (1) she is a member of the

protected class (i.e., over 40 years of age); (2) she was qualified

for the position for which she applied; (3) she was not hired; and (4)

she was disadvantaged in favor of a younger person.” Teneyck v. Omni

Shoreham Hotel,

(D.C. Cir. 2004). While plaintiff

9 need not plead each element of a prima facie case to survive a motion

to dismiss, see Brown v. Sessoms,

(D.C. Cir.

2014), still she “must . . . plead sufficient facts to show a

plausible entitlement to relief,” Fennell v. AARP,

(D.D.C. 2011).

Defendant argues that plaintiff “cannot state any disparate

treatment claim under the ADEA” because she does not allege that she

sought employment with OPM. Def.’s Mem. at 12. The Court concurs.

On review of the complaint, as amended, the Court concludes that the

few facts alleged fail to demonstrate a plausible age discrimination

claim.

III. CONCLUSION

For the reasons discussed above, the Court will grant defendant’s

motion and deny plaintiff’s motion. An Order is issued separately.

Signed: Emmet G. Sullivan United States District Judge

Dated: May 28, 2021

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