Koch v. White, Case No. 12-cv-01934 (APM).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtAmit P. Mehta, United States District
Citation251 F.Supp.3d 162
Parties Randolph S. KOCH, Plaintiff, v. Mary Jo WHITE, et al., Defendants.
Decision Date02 May 2017
Docket NumberCase No. 12-cv-01934 (APM).

251 F.Supp.3d 162

Randolph S. KOCH, Plaintiff,
Mary Jo WHITE, et al., Defendants.

Case No. 12-cv-01934 (APM).

United States District Court, District of Columbia.

Signed May 2, 2017

251 F.Supp.3d 165

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

Fred Elmore Haynes, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.


Amit P. Mehta, United States District

This is a mixed case appeal of a Merit Systems Protection Board decision arising from the termination of Plaintiff Randolph S. Koch's employment with the U.S. Securities and Exchange Commission. Plaintiff filed administrative complaints alleging that, by failing to provide him a reasonable accommodation for his disability and terminating his employment, Defendant Mary Jo White, acting in her official capacity as Chairwoman of the U.S. Securities and Exchange Commission, discriminated against him based on his disability, age, and religion and retaliated against him for engaging in protected activity. The Board concluded that Plaintiff's firing was not the result of discrimination or retaliation but, rather, Plaintiff's own misconduct. In the process of making that determination, the Board declined Plaintiff's requests to dismiss the appeal without prejudice or otherwise postpone proceedings in light of Plaintiff's medical conditions. Plaintiff has appealed on the grounds that (1) the Board's decision was arbitrary and capricious, not in compliance with legal procedures, unsupported by substantial evidence, or otherwise not in accordance with law, and (2) Defendant's conduct violated several federal antidiscrimination statutes.

Now before the court is Defendant's unopposed Motion for Summary Judgment. Plaintiff, proceeding pro se, has not filed an opposition to Defendant's motion, but has filed several motions for extensions

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of time.1 After thorough consideration of the record, the court grants Defendant's Motion and denies Plaintiff's motions.


Plaintiff, formerly employed by the U.S. Securities and Exchange Commission ("SEC"), claims to suffer from several medical conditions, including coronary artery disease, hypertension, diabetes, a clotting disorder, gout, sleep apnea, Delayed Sleep Phase Disorder, circadian rhythm disorder, Attention Deficit Disorder, and arthritis in his foot. See Third Am. Compl., ECF No. 64 [hereinafter Third Am. Compl.], ¶¶ 11–17, 19–20, 83. Because of these medical conditions, Plaintiff found it difficult to come to work on time, or at all. See id. ¶¶ 34–35, 65–67.

Plaintiff claims that he modified his schedule to ensure he met his professional obligations and sought assistance from the SEC to accommodate his needs. He asserts that he made up any time he missed from work by working additional hours outside his set schedule. See id. ¶¶ 22, 39. At the same time he was working late to make up lost hours, Plaintiff claims, his colleagues were permitted to leave work for extended lunch periods, go for coffee, or exercise during work hours without repercussion. Id. ¶¶ 36–38, 82. In general terms, Plaintiff also alleges that he made multiple requests for schedule and workplace flexibility accommodations in light of his medical disability, but those requests largely were ignored or denied. See id. ¶¶ 59, 61, 84; cf. id. ¶¶ 59–60 (indicating that Plaintiff received an accommodation in the form of an adjustment of his arrival time, but he subsequently deemed that accommodation insufficient). More specifically, Plaintiff made at least two requests for a part-time telework arrangement during the first half of 2009.2 He purportedly made one request in January 2009 and a second in June 2009. The SEC denied Plaintiff's January 2009 request, see id. ¶¶ 72, 77, and closed out Plaintiff's June 2009 request after Plaintiff failed to engage in the interactive process, see Notice of Filing of Exs. Under Seal, ECF No. 88 [hereinafter Notice of Exs.], Ex. G, ECF No. 88–6 [hereinafter Ex. G], at 27 (SEC Final Agency Decision).3

Plaintiff's unscheduled comings and goings from work did not go unnoticed. On June 5, 2008, the SEC began an investigation into allegations that Plaintiff was not adhering to his set schedule. Def.'s Mot. for Summ. J., ECF No. 87 [hereinafter Def.'s Mot.], at 4–25 [hereinafter Stmt. of Undisputed Material Facts], ¶ 2; Public Notice of Filing Ex. A Under Seal, ECF No. 101, Ex. A Pt. 1, ECF No. 101–1 [hereinafter Ex. A. Pt. 1]. Nine months later, the SEC's investigation concluded that Plaintiff "violated the Standards of Conduct as well as [SEC] policy and rules with his excessive, unauthorized absences from duty." Ex. A. Pt. 1 at 18. The SEC's

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investigation relied upon electronic gate data ("turnstile data") from April 1 to November 5, 2008, which showed that Plaintiff "regularly failed to follow [his] tour of duty and that on multiple occasions [he] failed to work the number of hours [he] reported as work hours on [his] official time record." Notice of Exs., Ex. B, ECF No. 88–1 [hereinafter Ex. B], at 1. Specifically, "there were 16 occasions (over 36 hours total) when [Plaintiff] failed to work the number of hours [he] reported on [his] official time record and 78 occasions when [he] failed to follow [his] tour of duty." Ex. B at 1. Additionally, between April 1 and July 14, 2008, Plaintiff did "not once arrive[ ] to work on time," and "arrived to work late and/or left work early without taking approved leave, for a total of 112.67 hours." Ex. A Pt. 1 at 3. Further, the SEC concluded Plaintiff had submitted insufficient documentation to justify his absence from work from March 2 to May 1, 2009. Ex. B at 2. As a result of the investigation's findings, the SEC issued a Notice of Proposed Removal from Federal Service to Plaintiff on June 15, 2009. See id. After Plaintiff submitted oral and written replies to the Proposed Removal, the SEC issued its Final Decision of Removal, explaining that Plaintiff's employment would be terminated, effective October 13, 2009, for falsely reporting his work hours, being excessively absent without leave, failing to adhere to his set hours of employment, and inappropriately using official time. Stmt. of Undisputed Material Facts ¶¶ 4–6; Notice of Exs., Ex. D, ECF No. 88–3 [hereinafter Ex. D].

Plaintiff, believing the SEC's reasons for firing him to be pretext for discrimination and retaliation, filed two formal administrative complaints with the SEC's Equal Employment Opportunity Office ("EEO Office"). He alleged that, by failing to provide a reasonable accommodation for his disability in response to his June 2009 request and terminating his employment, the SEC had discriminated against him based on his age, religion, and disability and retaliated against him for engaging in protected activity. Stmt. of Undisputed Material Facts ¶¶ 7–8; Notice of Exs., Ex. E, ECF No. 88–4 [hereinafter EEO Compl. 18–09–09]; Notice of Exs., Ex. F, ECF No. 88–5 [hereinafter EEO Com pl. 04–10–10]. The EEO Office consolidated Plaintiff's filings into a single administrative complaint and opened an investigation. Stmt. of Undisputed Material Facts ¶¶ 7–9. It read Plaintiff's EEO Complaints, collectively, as raising three issues: (1) "[w]hether the SEC discriminated against [Plaintiff] in retaliation for prior EEO activity when it issued him a proposed removal dated June 15, 2009"; (2) "[w]hether the SEC discriminated against [Plaintiff] by denying him a reasonable accommodation for his disability (physical) on or about June 17, 2009"; and (3) "[w]hether the SEC discriminated against [Plaintiff] based on his age (DOB 5/17/74), disability (physical), religion (Jewish) and/or in retaliation for prior EEO activity when it terminated his employment with the SEC on or about October 6, 2009." See Ex. G at 5–6. After conducting an investigation as to each claim, the EEO Office determined Plaintiff had failed to establish the SEC discriminated or retaliated against him. See id. at 26–28.

Plaintiff appealed the EEO Office's decision to the Merit Systems Protection Board ("MSPB" or "the Board"). The parties agreed to suspend the appeal's progress for 30 days to allow for additional time to conduct discovery. Stmt. of Undisputed Material Facts ¶ 17. After the case resumed, Plaintiff twice moved to dismiss the appeal without prejudice in light of his medical conditions, but the Administrative Law Judge ("ALJ") assigned to the case denied both requests. Id. ¶¶ 21, 23; Notice

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of Exs., Ex. K, ECF No. 88–10 [hereinafter Ex. K], at 1; Notice of Exs., Ex. J, ECF No. 88–9 [hereinafter Ex. J], at 17–18. With respect to these requests, the ALJ explained that Plaintiff had had sufficient time to conduct discovery while the case was suspended and had not supplied any reason why he would be unable to participate in the appeal, as scheduled. See Ex. K at 1; Ex. J at 18. Plaintiff subsequently restyled his request for a dismissal without prejudice as a "reasonable accommodation" of his disabilities, claiming that the accommodation was warranted "so that he may participate in discovery as well as the adjudication of his appeal." Stmt. of Undisputed Material Facts ¶ 24; Ex. J at 18. The ALJ denied this...

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