Koch v. Walter

• Decision Date: 30 March 2013
• Docket Number: Civil Action No. 08–1521 (PLF).
• Citation: 935 F.Supp.2d 143
• Parties: Randolph S. KOCH, Plaintiff, v. Elisse B. WALTER, Chairman, Securities and Exchange Commission, Defendant.
• Court: U.S. District Court — District of Columbia

935 F.Supp.2d 143

Randolph S. KOCH, Plaintiff,

v.Elisse B. WALTER, Chairman, Securities and Exchange Commission, Defendant. ¹

Civil Action No. 08–1521 (PLF).

United States District Court, District of Columbia.

March 30, 2013.

Randolph S. Koch, Rockville, MD, pro se.

Fred Elmore Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

In this employment discrimination lawsuit, plaintiff Randolph S. Koch has charged his former employer, the Securities and Exchange Commission (“SEC”), with violating various provisions of the Rehabilitation Act, the Age Discrimination in Employment Act (“ADEA”), and Title VII of the Civil Rights Act of 1964. On March 29, 2010, the Court dismissed all but two claims in this case. Koch v. Schapiro, 699 F.Supp.2d 3, 6 (D.D.C.2010). This matter is now before the Court on the SEC's motion for summary judgment on the two remaining claims. The SEC contends that Mr. Koch failed to exhaust his administrative remedies and therefore cannot bring this case in federal court. Upon consideration of the parties' papers, the relevant legal authorities, and the entire record in this case, the Court will grant the SEC's motion.²

I. BACKGROUND

A. Procedural History

Randolph Koch, a white, Jewish male, worked as a financial analyst at the SEC from December 16, 1991 until after this lawsuit was filed in August 2008. Compl. ¶¶ 4, 6, 8. Mr. Koch alleges that he suffers from cardiovascular disease, obstructive sleep apnea, and gout, among other medical conditions. Id. ¶ 6. At the time of the events giving rise to this action, Mr. Koch was over 40 years of age. Id. Mr. Koch has filed several lawsuits against the SEC and other government agencies alleging instances of discrimination and retaliation under the Rehabilitation Act, the ADEA, and Title VII. Id. ¶ 7. See, e.g., Koch v. Holder, 930 F.Supp.2d 14, 2013 WL 953368 (D.D.C. Mar. 13, 2013); Koch v. Schapiro, 777 F.Supp.2d 86 (D.D.C.2011); Koch v. Schapiro, 759 F.Supp.2d 67 (D.D.C.2011); Koch v. Donaldson, 260 F.Supp.2d 86 (D.D.C.2003).

In the present action, Mr. Koch claims that SEC managers subjected him to discriminatory and retaliatory actions based on his various protected statuses under the Rehabilitation Act, Title VII and the ADEA, and because of his prior involvement in protected activities. Compl. ¶ 22. He also alleges that the agency failed to provide reasonable accommodations for his disabilities under the Rehabilitation Act. Id. He asserts that the aggregate of these actions was sufficient to create a hostile work environment. Id.

In its March 29, 2010 decision, this Court granted in part and denied in part the SEC's motion to dismiss the complaint. Koch v. Schapiro, 699 F.Supp.2d at 6. The Court's decision narrowed the issues in this action to two claims: whether SEC managers acted in a discriminatory and retaliatory manner (i) when they imposed a “curfew” on Mr. Koch, under which he was required to leave SEC premises at a certain time each day, and (ii) when they issued him a formal letter of reprimand. Id. at 15;see also Compl. ¶¶ 13, 15, 22; Def.'s Stmt. Mat. Facts ¶¶ 3–4. The Court noted that its decision left open the preliminary question of whether Mr. Koch had exhausted his administrative remedies before presenting these claims in this Court. Koch v. Schapiro, 699 F.Supp.2d at 12–13. Accordingly, the Court denied without prejudice the SEC's motion to dismiss those claims and permitted limited discovery on those issues. Id. at 15.

On August 26, 2010, the SEC filed a motion for summary judgment as to the two remaining claims.³ It contends that Mr. Koch failed to exhaust his administrative remedies because he did not timely initiate contact with an Equal Employment Opportunity (“EEO”) counselor as required by 29 C.F.R. § 1614.105(a)(1) (2012). Def.'s Mot. at 2–3. In addition, the SEC argues that Mr. Koch's refusal to cooperate with the EEO counselor he eventually contacted constituted a failure to exhaust the administrative counseling requirement. Id. at 3.

B. Administrative Counseling of Mr. Koch's Claims

A timeline of the relevant administrative proceedings follows:

On September 15, 1999, SEC management gave Mr. Koch a work departure directive (the “curfew”), under which Mr. Koch was required to leave the SEC by a certain time each day. Compl. ¶ 13; Def.'s Stmt. Mat. Facts ¶ 3. On October 13, 1999, SEC management issued Mr. Koch a formal reprimand, which he believes was undeserved and unjustified and given in part in retaliation for engaging in protected activities. Compl. ¶ 15; Def.'s Stmt. Mat. Facts ¶ 4.

Mr. Koch asserts that in September or October 1999, he contacted a counselor in the Boston branch of the SEC's EEO Office to initiate pre-complaint counseling for these events, which he considered to be discriminatory and retaliatory. Pl.'s Stmt. Mat. Facts ¶ 45; Def.'s Stmt. Mat. Facts ¶¶ 4–5. But this counselor was not available to provide counseling to him. Pl.'s Stmt. Mat. Facts ¶ 45; Def.'s Stmt. Mat. Facts ¶¶ 4–5. Mr. Koch then made requests for counseling to other SEC EEO staff, but he continued to be unsuccessful in locating an available counselor. Pl.'s Stmt. Mat. Facts ¶ 37; Def.'s Stmt. Mat. Facts ¶ 6.

In the spring of 2000, Mr. Koch requested that he be assigned a counselor for these claims by the SEC's EEO Office. Def.'s Stmt. Mat. Facts ¶ 7. The EEO Office initially responded that it did not assign specific counselors, but on June 1, 2000, the office informed Mr. Koch that counselor Steven Yadegari would be available to assist him. Def.'s Stmt. Mat. Facts ¶¶ 7–8. Mr. Koch did not contact Mr. Yadegari for over two months, however, during which time Mr. Yadegari became unavailable. Def.'s Stmt. Mat. Facts ¶ 9. In August and September 2000, the EEO Office gave Mr. Koch the names of additional counselors, including Melanie Adams, who could assist him with counseling. Def.'s Stmt. Mat. Facts ¶¶ 10–12.

Mr. Koch contacted Ms. Adams on October 3, 2000, and Ms. Adams responded that she was available. Def.'s Stmt. Mat. Facts ¶ 12; Paver Decl. Ex. 3 at 7–8. After she did not hear back from Mr. Koch, Ms. Adams sent him an email on October 11, 2000, asking if he still needed her assistance. Def.'s Stmt. Mat. Facts ¶ 13. Mr. Koch replied on October 30, 2000, and expressed his desire to commence the EEO process, promising to “prepare a list of issues to be counseled.” Def.'s Stmt. Mat. Facts ¶ 14; Paver Decl. Ex. 3 at 7. He also stated his preference that counseling be performed only through written correspondence, stating: “The EEO Office (and the EEOC) apparently take the position that final counseling interviews can be conducted by written communication, rather than face-to-face or other meeting, so I see no reason why the rest of the process cannot be handled through written correspondence as well.” Paver Decl. Ex. 3 at 7; see also Def.'s Stmt. Mat. Facts ¶ 14.

Mr. Koch did not send Ms. Adams the list of issues he promised, however, so she sent him a follow-up email on November 14, 2000. When Mr. Koch responded on November 21, 2000, he explained that he would not, in fact, identify specific issues or incidents, as there were “numerous incidents—too many to mention.” Paver Decl. Ex. 4 at 10. He continued:

Suffice it to say that these incidents are part of a continuous campaign and program of reprisal and harassment. It would take too much research and time at this point to reconstruct all the events. Further, as part of the counseling process I do not need to describe in specific detail the basis, the reasons for my belief that such actions were discriminatory and so on.

Id.; see also Def.'s Stmt. Mat. Facts ¶ 16. He then stated:

I will provide answers to your questions, but only with the limited detail necessary. If you want the detail of the type you request, as well as information as to why I think such actions are discriminatory, it should be provided in the agency's investigation, not counseling.

Paver Decl. Ex. 4 at 11; see also Def.'s Stmt. Mat. Facts ¶ 18. There is no evidence in the record that Mr. Koch ever submitted a list of issues or incidents to Ms. Adams, and he does not suggest that he did.

After counseling failed to resolve his concerns, Mr. Koch filed an administrative complaint, alleging that the imposition of the curfew and the formal reprimand, along with several other acts, constituted violations of the ADEA, Title VII, and the Rehabilitation Act. Def.'s Stmt. Mat. Facts ¶ 1; Brockmeyer Decl. ¶ 3. The SEC issued a Notice of Partial Acceptance and Partial Rejection of his claims on May 1, 2001, in which the agency dismissed Mr. Koch's claims relating to the curfew and formal reprimand as untimely pursuant to 29 C.F.R. § 1614.107 (2012). See Koch v. Cox, No. 0120061643, 2008 WL 1847587, at *1–2 (E.E.O.C. Apr. 2, 2008) (discussing agency's dismissal). The Equal Employment Opportunity Commission (“EEOC”) affirmed that decision on April 2, 2008. Id.

II. LEGAL STANDARD

While Mr. Koch is proceeding pro se in this case, the Court notes that Mr. Koch is a lawyer, see Pl.'s Decl. ¶¶ 3–4, and an active litigant who has considerable experience pursuing employment discrimination matters. Nevertheless, the Court reviews his filings under “less stringent standards than formal pleadings [or legal briefs] drafted by lawyers.” Chandler v. W.E. Welch & Associates, Inc., 533 F.Supp.2d 94, 102 (D.D.C.2008) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).

Summary judgment may be granted under Rule 56 if the party seeking to dismiss a claim demonstrates that there is no genuine dispute as to any material fact, and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C....