LOUIS v. HAGEL

Filing 21

MEMORANDUM AND OPINION: Re Defendant's 20 Motion to Dismiss. Signed by Judge Tanya S. Chutkan on 10/28/16. (DJS)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VALERY LOUIS,
Plaintiff,
v.
CHUCK HAGEL
Secretary, U.S. Department of Defense,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 15-cv-92 (TSC)

MEMORANDUM OPINION
Plaintiff Valery Louis brings this action against the Department of Defense (“DOD”)
alleging that the agency discriminated against him based on his race and national origin in
violation of Title VII, 42 U.S.C. § 2000e et seq.1 Plaintiff also alleges that he was constructively
discharged. Defendant unsuccessfully challenged venue in this district and, after a scheduling
conference, the parties agreed on a briefing schedule for pre-discovery motions. The court
entered an order adopting the agreed-upon deadlines and Defendant filed a timely motion to
dismiss. (ECF No. 20). However, Plaintiff has not filed a response to the motion, nor has he
sought leave to extend his response deadline of August 16, 2016. (See ECF No. 19). Therefore,
this court could treat Defendant’s arguments as conceded. See Local Civil Rule 7(b). However,
for the reasons set forth below, the court will GRANT Defendant’s motion in part, and DENY
the motion in part.

In his Corrected Complaint, Plaintiff cites to 5 U.S.C. § 7702, which governs
administrative review of discrimination claims by federal employees and sets forth the
circumstances under which judicial review is available. Despite Plaintiff’s citation to this
provision, the court construes his claims as Title VII, 42 U.S.C. § 2000e, discrimination
claims because Plaintiff repeatedly refers to “Title VII” in the Corrected Complaint.
1

--1--

A. BACKGROUND
Plaintiff describes himself as an “Afro-American of Haitian national origin[ ].” (ECF
No. 6, Corrected Compl. ¶ 7).2 He is a former employee with the Defense Information Systems
Agency (“DISA” or “Agency”)—a component division within DOD. Plaintiff alleges that
during his employment, he “was subjected to racial and national origin epithets from other
members of DISA’s staff” and that he was the victim of “physical assaults motivated by . . .
hostility to his race and national origin.” (Id. ¶ 5). He claims that the assaults “included the
administration of a gas which rendered [him] unconscious” and the administration of acid
droplets that caused him “facial injuries.” (Id.) Allegedly fearing for his safety, Plaintiff
resigned and DISA subsequently revoked his “classification,” which the court interprets as his
security clearance. (Id.)
Plaintiff asserts three causes of action: disparate treatment (Count I);3 hostile work
environment (Count II); and constructive discharge (Count III). Defendant has moved to dismiss
for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to exhaust
administrative remedies, Fed. R. Civ. P. 12(b)(6).
B. STANDARD OF REVIEW
1. Rule 12(b)(1)

Plaintiff’s Corrected Complaint contains two paragraphs labeled number seven. In this
Opinion, any citations to paragraph seven refer to the second paragraph.
2

3

Plaintiff alleges that he experienced disparate treatment when the DOD: (1) subjected him to
“racial and ethnic insults and grotesque physical abuse”; and (2) suspended his security
clearance. (Corrected Compl. ¶ 7). As this court pointed out in its prior Opinion, “[t]he contours
of Plaintiff’s disparate treatment claim are not clear . . . because the only obvious adverse
employment action he mentions in his Complaint involves the revocation of his security
clearance.” Louis v. Hagel, No. 15-cv-92 (TSC), 2016 WL 1301050, at *1 (D.D.C. Apr. 1,
2016).
--2--

In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter
jurisdiction, a court must “assume the truth of all material factual allegations in the complaint
and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be
derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011) (citation omitted). “Nevertheless, ‘the court need not accept factual inferences drawn by
plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the
Court accept plaintiff’s legal conclusions.’” Disner v. United States, 888 F. Supp. 2d 83, 87
(D.D.C. 2012) (citation omitted). Importantly, the court “is not limited to the allegations of the
complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other
grounds, 482 U.S. 64 (1987). Rather, a court may consider “relevant facts found outside of the
complaint” when resolving a Rule 12(b)(1) motion to dismiss for lack of jurisdiction. Mendoza
v. Perez, 754 F.3d 1002, 1016 n.9 (D.C. Cir. 2014).
2. Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) for failure to state a claim “tests the legal
sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To
survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted). In most instances, when deciding a Rule
12(b)(6) motion, 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.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997). Additionally, “the Court may consider documents specifically referenced in the
complaint where the authenticity of the document is not questioned.” United Mine Workers of

--3--

Am., Int’l Union v. Dye, No. CIV.A. 06-1053(JDB), 2006 WL 2460717, at *6 (D.D.C. Aug. 23,
2006); New York State Bar Ass’n v. F .T.C., 276 F. Supp. 2d 110, 114 n.6 (D.D.C. 2003) (noting
that “a document is not ‘outside’ the complaint if the complaint specifically refers to the
document and if its authenticity is not questioned.”) (quoting Cooper v. Pickett, 137 F.3d 616,
622–23 (9th Cir. 1997)). 4
C. ANALYSIS
Defendant seeks dismissal on the grounds that: (1) this court does not have jurisdiction to
consider Plaintiff’s claims relating to his security clearance; and (2) Plaintiff failed to exhaust his
administrative remedies with respect to his claims regarding racial/national origin epithets and
physical assaults.
1. Disparate Treatment - Security Clearance
In its prior Opinion, this court warned Plaintiff that any claims regarding revocation of
his security clearance had to be considered in light of this court’s decision in Hendrix v.
Napolitano, 77 F. Supp. 3d 188, 194–96 (D.D.C. 2015). See Louis v. Hagel, No. 15-CV-92
(TSC), 2016 WL 1301050, at *1 n.2 (D.D.C. Apr. 1, 2016). In Hendrix, this court explained that
“a court may not review a decision regarding suspension or revocation of a . . . Security
clearance, because such decisions are nonjusticiable under” Department of the Navy v. Egan, 484
U.S. 518 (1988). 77 F. Supp. 3d at 194; see also Rattigan v. Holder, 689 F.3d 764, 766 (D.C.

4
Resolving Defendant’s motion on the exhaustion issue requires the court to consider two
documents outside of the Corrected Complaint: (1) Plaintiff’s EEO charge; and (2) Defendant’s
“Notice of Acceptance of Discrimination Complaint” (“Determination Letter”). Plaintiff has not
challenged the authenticity of these two documents, and references the EEO charge in his
Corrected Complaint (Corrected Compl. ¶ 1). Plaintiff also refers to the Determination Letter in
his Corrected Complaint (Id. ¶¶ 1, 3), and repeatedly cites to the Letter in the opposition papers
he filed in response to Defendant’s first motion to dismiss. (See ECF No. 10, Pls. Response, pp.
4, 6–7, 9; ECF No. 12, Plaintiff’s Clarification Motion, p. 3). Thus, the authenticity of that
document is not at issue.
--4--

Cir. 2012) (noting that the Circuit interpreted Egan as barring “judicial review of adverse
employment actions based on the denial or revocation of a security clearance.”) (citations
omitted); cf. Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009) (“Therefore, following the
lead of the Supreme Court, we have consistently held that because the authority to issue a
security clearance is a discretionary function of the Executive Branch, actions based upon denial
of security clearance are committed to agency discretion by law, at least where a constitutional
claim is not properly presented.”) (citations omitted).
Citing Egan, Defendant argues that this court must dismiss Plaintiff’s claims regarding
the revocation of his security clearance. The court agrees. Plaintiff did not assert any facts or
cite to any legal authority in his Corrected Complaint that might support maintenance of his
security clearance claim, and he has not responded to Defendant’s motion. Accordingly, the
court will grant DOD’s 12(b)(6) motion to dismiss the security clearance claim as conceded. See
Local Civil Rule 7(b).
2. Hostile Work Environment/Constructive Discharge
Next, Defendant argues that Plaintiff’s claims regarding racial/national origin epithets
and physical assaults are not actionable because Plaintiff failed to exhaust his administrative
remedies. After filing an EEO charge, a plaintiff may bring a lawsuit only for “claims that are
‘like or reasonably related to the allegations of the charge and growing out of such allegations.’”
Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citation omitted).
A vague or circumscribed . . . charge will not satisfy the exhaustion requirement
for claims it does not fairly embrace. Allowing a complaint to encompass
allegations outside the ambit of the predicate . . . charge would circumvent the
EEO[]’s investigatory and conciliatory role, as well as deprive the charged party
of notice of the charge, as surely as would an initial failure to file a timely . . .
charge.

--5--

Marshall v. Fed. Exp. Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (internal quotations and
citation omitted). Therefore, “[a]t a minimum, the Title VII claims must arise from ‘the
administrative investigation that can reasonably be expected to follow the charge of
discrimination.’” Jackson v. Gallaudet Univ., No. CV 14-2074 (TSC), 2016 WL 953217, at *2
(D.D.C. Mar. 14, 2016) (citing Park, 71 F.3d at 907).
Because failure to exhaust is an affirmative defense, the defendant bears the burden of
proof on this issue. Hairston v. Tapella, 664 F. Supp. 2d 106, 110 (D.D.C. 2009). Once a
defendant has met its burden, the burden shifts to the plaintiff to make the case that dismissal is
not warranted. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).
In his EEO charge, Plaintiff “checked the box” for national origin and race and
explained:
Treated differently from other employees due to race and national origin. More
details on other sheets.
(Def. Ex. 1).5 Neither party placed the “other sheets” in the record here, but Defendant provided
a copy of the Determination Letter that the agency sent Plaintiff in response to his EEO Charge.
(Def. Ex. 2). In that Letter, the agency characterized Plaintiff’s allegations as follows:
Based on a review of your discrimination complaint dated 30 November, 2012, it
is understood that you are alleging you were discriminated against on the basis of
your Race (Black) and National Origin (Haiti) and you were subjected to a hostile
work environment culminating in constructive discharge from federal service
when:
l) On 15 Oct, 20l2, your access to classified information was suspended.
2) On, or around, 16 Oct, 2012, you were forced to formally resign from federal
service out of fear and concern for your safety.

While the EEO form contains a “box” to check for sexual harassment, the form does not
contain a “box” to check for harassment based on race or age. (See Def. Ex. 1).

5

--6--

(Def. Ex. 2). The Letter also informed Plaintiff that if he believed the claims were not “correctly
identified,” he was to notify the agency within seven days of receiving the Letter or the agency’s
“definition” of the charge would be presumed correct. (Id.) Because Plaintiff did not contest the
agency’s description of his claim and because the agency purportedly failed to accept Plaintiff’s
racial/national origin epithet and assault allegations for investigation, Defendant contends that
Plaintiff failed to exhaust his administrative remedies with respect to these allegations.
Even in the absence of a response by Plaintiff, the court will deny Defendant’s motion
because the agency has not met its burden of establishing that Plaintiff failed to exhaust his
administrative remedies. First, the exhaustion “inquiry necessarily involves examining the facts
alleged in the EEO[] complaint to determine whether the [agency] had notice to investigate the
claims first before they were raised in court.” Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev.,
961 F. Supp. 2d 104, 110 (D.D.C. 2013) (citing Mangiapane v. Adams, 661 F.2d 1388, 1389
(D.C. Cir. 1981)); Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d Cir. 2008). But here, without a
copy of the “other sheets,” to which Plaintiff referred in his EEO complaint, the court is unable
to determine if “all of the material facts alleged in the complaint . . . were also alleged in the”
EEO charge. Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev., 961 F. Supp. 2d 104, 110
(D.D.C. 2013).
Viewing the facts in the light most favorable to Plaintiff, however, the court finds that the
documents in the record suggest that Plaintiff did, in fact, complain to the agency about the
alleged assaults and racial/national origin epithets. The DOD’s Determination Letter indicates
that Plaintiff claimed to have resigned because he feared for his life, after being subjected to a
hostile work environment. (Def. Ex. 2). Moreover, after completing its investigation, the agency
issued an opinion that specifically discussed Plaintiff’s allegations regarding physical assaults

--7--

with acid and DISA employees making racial/national origin comments. (ECF No. 8, Def. Mot.
to Dismiss, Final Agency Decision, Ex. 1, pp. 2–4). Thus, there is evidence that Plaintiff not
only informed DOD about the challenged conduct, but that the agency also investigated his
claims. Accordingly, the agency’s failure to explicitly characterize his claims as including
allegations of assaults and racial/national origin epithets is not dispositive here.
Moreover, the court rejects Defendant’s argument that Plaintiff’s failure to challenge the
DOD’s characterization of his claims as articulated in the Determination Letter means he failed
to exhaust his administrative remedies. As another Judge on this court has noted (in a decision
that was affirmed by the D.C. Circuit), a plaintiff’s failure to correct or to respond to the
agency’s Determination Letter is not a prerequisite to filing a Title VII lawsuit:
[A]n acceptance-of-claims letter, though organizationally useful in clarifying the
topics to be investigated, is not a mandated pre-investigation procedure under
any statute or regulation insofar as the agency is not required to identify for the
complainant the specific claims that it will investigate following an EEO
complaint and the complainant is not required to respond within a certain time to
avoid waiving those claims. But by putting the burden on the complainant to
object to the agency’s acceptance-of-claims letter within the arbitrarily specified
timeframe, courts shift the exhaustion onus from the agency to the individual
without any legal basis for doing so. See Ortiz–Diaz v. U.S. Dep’t of Hous. &
Urban Dev., 961 F. Supp. 2d 104, 111–12 (D.D.C. 2013) (holding that
“agencies, not employees, have the burden of developing the administrative
record,” and “that much plaintiff has done by having included racial
discrimination on his EEOC complaint”).
Mokhtar v. Kerry, 83 F. Supp. 3d 49, 65–66 (D.D.C. 2015), aff’d, No. 15-5137, 2015 WL
9309960 (D.C. Cir. Dec. 4, 2015) (footnotes omitted)(emphasis in the original).
C. CONCLUSION
For the reasons explained above, by separate order the court will GRANT DOD’s motion
on Plaintiff’s claims as they relate to his security clearance, but DENY without prejudice the

--8--

motion as to all other claims.

Date: October 28, 2016

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

--9--