CHAN v. FEDERAL COMMUNICATIONS COMMISSION

Filing 10

MEMORANDUM OPINION in support of 9 Order granting Defendant's 6 Motion to Dismiss. The Clerk of the Court shall mail a copy of this Opinion to Plaintiff at his address of record. Signed by Judge Timothy J. Kelly on 3/8/2018. (lctjk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDER CHAN,
Plaintiff,
v.
Civil Action No. 17-921 (TJK)
FEDERAL COMMUNICATIONS
COMMISSION,
Defendant.

MEMORANDUM OPINION
Before the Court is Defendant’s Motion to Dismiss. ECF No. 6 (“Mot.”). For the
reasons stated therein, the Motion is granted as conceded. Plaintiff’s complaint (ECF No. 1), and
the case, are dismissed without prejudice.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2017, Plaintiff Alexander Chan, proceeding pro se, filed suit in this Court

against his former employer, the Federal Communications Commission (“FCC”). ECF No. 1
(“Compl.”). Chan, who is partially disabled and Asian American, voluntarily retired from his
position at the FCC in 2010. Compl. at 1-2; Mot. at 1. In his short complaint, he appears to
claim that, while employed with the FCC, he was passed over for a promotion due to his
disability and race. Compl. at 1-2. The complaint does not allege exactly when this purported
discrimination occurred. See Compl.; Mot. at 5 & Ex. A. It also does not explicitly set forth
Chan’s causes of action. See Compl. The FCC has, reasonably, interpreted his complaint as
bringing claims under the Rehabilitation Act, 29 U.S.C. § 701 et seq., and Title VII of the Civil

Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq. Mot. at 1, 5 & n.2. Notably, in his
complaint, Chan does not allege that he exhausted his administrative remedies, a prerequisite to
filing such claims under Title VII or the Rehabilitation Act, before filing this lawsuit. See
Compl.
On September 20, 2017, the FCC moved to dismiss the complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) for failure to exhaust administrative remedies.
Mot. at 1. Specifically, the FCC explained that in January 2017, more than six years after he left
the agency, Chan filed an informal complaint with its Equal Employment Opportunity (“EEO”)
office, the Office of Workplace Diversity (“OWD”). Id. at 2. He subsequently met with an EEO
counselor who, at the conclusion of counseling, informed Chan of his right to file a formal
complaint with the OWD. Id. at 2 & Ex. F. But Chan did not do so, and the OWD closed its
investigation. Mot. at 2.
On October 30, 2017, the Court issued an order instructing Chan to respond to the
Motion by November 30, 2017, and noted that “[i]f Plaintiff fails to file a timely response to
Defendant’s Motion, the Court may treat it as conceded and, if circumstances warrant, render a
judgment in favor of Defendant.” ECF No. 7 at 2. Because the record was not clear as to
whether Chan timely received that order, the Court issued a similar order on January 30, 2018
instructing Plaintiff to respond by February 28, 2018. ECF No. 8. As of the date of this opinion,
Chan has not responded to either order.
II.

LEGAL STANDARD
Under Local Rule 7(b), if a party does not respond to a motion to dismiss within the

prescribed time, “the Court may treat the motion as conceded.” The D.C. Circuit has permitted
this practice. See Cohen v. Bd. of Trs. of the Univ. of D.C., 819 F.3d 476, 480 (D.C. Cir. 2016);

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Jackson v. Todman, 516 F. App’x 3 (D.C. Cir. 2013); Fox v. Am. Airlines, Inc., 389 F.3d 1291,
1293-94 (D.C. Cir. 2004) (affirming district court’s “straightforward” application of Local Rule
7(b) where the district court treated a motion as conceded “because the plaintiffs failed to
respond”). But it has also found that dismissing a conceded motion with prejudice can be an
abuse of discretion. See Cohen, 819 F.3d at 484 (“[T]he district court . . . abused its discretion
by dismissing the case when its dismissal of the complaint under Local Rule 7(b) should have
been, at most, without prejudice.”).
Moreover, “[a] plaintiff may file a Title VII or Rehabilitation Act action in federal court
only after exhausting her administrative remedies before the relevant federal agency for each
allegedly discriminatory act.” Smith v. Lynch, 106 F. Supp. 3d 20, 41 (D.D.C. 2015) (collecting
cases). “Title 29 of the Code of Federal Regulations describes the administrative process for
filing discrimination complaints against the federal government.” Blue v. Jackson, 860 F. Supp.
2d 67, 72 (D.D.C. 2012). “[O]ne who believes he has been subjected to discrimination by his
federal-government employer ‘must consult a[n] [EEO] Counselor prior to filing [a formal
administrative] complaint in order to try to informally resolve the matter.’” Id. (quoting 29
C.F.R. § 1614.105(a)). The “aggrieved person must initiate contact with a[n] [EEO] Counselor
within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R.
§ 1614.105(a)(1). If counseling is unsuccessful, “[i]n order to exhaust administrative remedies, a
complainant must file . . . a formal complaint” with the agency. Blue, 860 F. Supp. 2d at 73
(citing Hamilton v. Geithner, 666 F.3d 1344, 1350 (D.C. Cir. 2012)). An employee may seek
relief in federal court only after an agency issues a final adverse decision or 180 days have
elapsed, whichever comes first. Id. (discussing Title VII exhaustion); Dick v. Holder, 80 F.
Supp. 3d 103, 110, 117 (D.D.C. 2015) (discussing Rehabilitation Act exhaustion).

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III.

ANALYSIS
The Court finds that the facts of this case present a “straightforward” application of Local

Rule 7(b). See, e.g., Fox, 389 F.3d at 1294; Voacolo v. Fed. Nat’l Mortg. Ass’n, 224 F. Supp. 3d
39, 43 (D.D.C. 2016) (“The Court finds that the facts of this case present a ‘straightforward’
application of Local Rule 7(b) because [plaintiff] has not asked for additional time or filed any
response to the motions to dismiss despite repeated warnings to do so.”). On September 20,
2017, the FCC moved to dismiss Chan’s complaint on the ground that he failed to exhaust his
administrative remedies because he did not timely initiate contact with an EEO Counselor or file
a formal complaint with the OWD before filing this action. Mot. at 5-8. Chan never responded
to this Motion, despite two warnings from this Court to do so. See ECF Nos. 7-8. Thus,
pursuant to Local Rule 7(b), the Court treats the FCC’s Motion as conceded and grants it. See,
e.g., Jackson, 516 F. App’x 3; Voacolo, 224 F. Supp. 3d at 43; Davenport v. United States, No.
07-cv-56 (RJL), 2007 WL 2122394, at *1 (D.D.C. July 24, 2007) (“In light of the fact that
plaintiff failed to file an opposition to defendants’ motion to dismiss, even when the Court issued
an Order requiring the plaintiff to do so or face the consequences of it being treated as conceded,
. . . the Court will treat defendants’ motion as conceded.”).
Although the FCC requests that Chan’s complaint be dismissed with prejudice, Mot. at
10, the Court declines to do so. The FCC has not argued why this case satisfies the “high” bar
for dismissing a complaint with prejudice, Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir.
2006), and the Court treads lightly when issuing a “case-ending sanction,” Peterson v. Archstone
Communities LLC, 637 F.3d 416, 417 (D.C. Cir. 2011). Cf. Cohen, 819 F.3d at 484 (noting
“dismissal of the complaint without prejudice would have been the proper route to accomplish
Local Rule 7(b)’s docket-management objectives”); Rudder v. Williams, 666 F.3d 790, 794 (D.C.

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Cir. 2012) (“Dismissal with prejudice is the exception, not the rule, in federal practice because it
‘operates as a rejection of the plaintiff’s claims on the merits and [ultimately] precludes further
litigation of them.’” (alteration in original) (quoting Belizan, 434 F.3d at 583)). Thus, the Court
will dismiss the complaint, and the case, without prejudice.
IV.

CONCLUSION
For the reasons set forth above, the FCC’s Motion to Dismiss (ECF No. 6) is GRANTED

AS CONCEDED. Plaintiff’s complaint (ECF No. 1), and the case, are DISMISSED
WITHOUT PREJUDICE. A separate order will be issued accompanying this opinion.

SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 8, 2018

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