Kelly v. Raimondo

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS United States District Judge

Plaintiff Timothy V. Kelly, proceeding pro se, brings this action under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., as well as several other federal laws, against the Secretary of Commerce (“the Department”).^[1] He asserts a host of claims related to his employment at and termination from the National Telecommunications Information Administration (“NTIA”), a component of the Department. Dkt. 9 (Am. Compl.). The Department moves to dismiss most, but not all, of these claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. 15 at 1. According to the Department, Kelly failed to assert certain claims administratively and abandoned others during the administrative process. Id. At 1.

2

For the following reasons, the Court will GRANT the Department's motion in part and DENY it in part.

I. BACKGROUND

For purposes of resolving the Department's motion, the Court “assume[s] the truth of all material factual allegations in the complaint” and “construe[s] the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged.” Am. Nat'l Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal quotation marks omitted). In addition, because Kelly is proceeding pro se, the Court holds his pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). And for that same reason, the Court treats the attachments Kelly submitted along with his complaint as part of the complaint. See Crawford v. Duke, 867 F.3d 103, 108 (D.C. Cir. 2017). Kelly's complaint in this action is light on context, so the following facts are drawn in significant part from his attachments, in particular an administrative complaint he appears to have filed with the Equal Employment Opportunity Commission (“EEOC”), Dkt. 9 at 14-21 (EEOC Compl.), and an appellate decision of the EEOC's Office of Federal Operations (“OFO”), id. at 23-29 (“OFO Decision”).

A. Factual Background

Kelly is a disabled veteran. Id. at 16 (EEOC Compl. ¶ 16). He suffers from hearing loss with tinnitus and spinal abnormalities. Id. at 16-17 (EEOC Compl. ¶¶ 19, 22). These disabilities impair his ability to communicate in certain respects and substantially limit his mobility, but he is able to overcome them in the workplace with the aid of accommodations, including communications devices and specialized orthopedic equipment. Id. at 17 (EEOC Compl. ¶¶ 20-

3

24). In 2010, Kelly began working at NTIA as a Communications Program Specialist. Id. at 16 (EEOC Compl. ¶ 13).

According to the complaint, Kelly's supervisors engaged in series of discriminatory actions against him beginning in 2014 and culminating in his removal in 2017. Id. at 4-5 (Am. Compl.). Kelly alleges that in September 2014 and without consulting him first, the Department temporarily cancelled his access to Call Bridge, “an audio, video, and conference system” service that previously had been provided to him as a reasonable accommodation related to his hearing loss. Id. at 27 (OFO Decision at 5 n.2); see also id. at 4 (Am. Compl.); id. at 19 (EEOC Compl. ¶ 39). Several months later, Kelly's iPhone, which had also been provided to him as a reasonable accommodation, broke down, but the Department declined to replace it, instead directing Kelly to “try to fix” it with the assistance of the NTIA help desk. Id. at 4-5 (Am. Compl.). And in May 2016 the Department authorized Kelly to receive a lightweight laptop as an accommodation for his spinal disabilities, but several weeks later his supervisor cancelled that accommodation. Id. at 4-5 (Am. Compl.); id. at 19 (EEOC Compl. ¶ 42).

Kelly also alleges that the Department removed or denied several reasonable accommodations related to his teleworking arrangement. He avers that in October 2015 the Department began to cut back in some way on his ability to telework full-time, an accommodation provided to him in 2014. Id. at 4-5 (Am. Compl.). According to Kelly, his 2014 telework policy was contained in a memorandum, and the Department never updated this memorandum for 2016. Id. at 4-5. Although Kelly does not elaborate on the consequences of this inaction and the extent which his ability to telework was reduced in practice, it appears that by mid-2016 he was working in person, at least some of the time. See id. at 4-5 (Am. Compl.); id. at 19 (EEOC Compl. ¶ 41). After he began commuting, Kelly requested a 6:00 a.m. to 2:30

4

p.m. in-person shift, so that he could avoid rush-hour traffic, which poses “potential hazards for exacerbating his symptoms.” Id. at 17, 19 (EEOC Compl. ¶ 23, 41); id. at 4-5 (Am. Compl.). But the Department denied this request. Id. at 19 (EEOC Compl. ¶ 41); Id. at 5 (Am. Compl.).

Separate from these reasonable accommodation incidents, Kelly describes numerous instances in which his supervisors allegedly cited him with false charges for being away without leave (“AWOL”). He was first marked as AWOL on January 27, 2016, but he maintains that he was teleworking that day and was not absent. See id. at 4 (Am. Compl.); see also id. at 19 (EEOC Compl. ¶ 40). He received another AWOL charge on December 9, 2016 for being away for approximately 40 hours on what he describes as approved sick-leave. Id. at 4. And he was issued a further charge for his absence on March 17, 2017, this time while he was taking unpaid leave to which he was allegedly entitled as a disabled veteran. Id. at 4; id. at 19 (EEOC Compl. ¶ 44). According to Kelly, despite his justifications for these alleged absences, his supervisors failed to “engage [him] in dialogue” prior to issuing charges and refused to discuss the charges with him after the fact. Id. at 5 (Am. Compl.); id. at 19 (EEOC Compl. ¶ 44).

The discriminatory treatment Kelly received extended to his opportunities for career development and advancement. In particular, Kelly asserts that he was wrongfully denied an opportunity to compete for a promotion. Id. at 4 (Am. Compl.). The details of what happened are sparse, but it appears that a “GS-15 Supervisory Tenured position” became available in 2015. Id. For reasons that are hard to discern, Kelly, a career-status employee at the GS-14 level, was asked to withdraw his name from consideration for the role. Id. at 4. (Am. Compl.); id. at 16 (EEOC Compl. ¶ 13). Several months later, a “term conditional” employee was promoted instead. Id. at 4. (emphasis omitted). Kelly does not explain this charge in further detail, but the Court infers Kelly's position to be that he was asked to withdraw his application for a

5

discriminatory or otherwise wrongful reason. Around this same time, Kelly was also issued a “letter of caution” about his performance after a call in which his supervisor was supposed to review his 2016 performance plan with him. Id. at 4 (Am. Compl.); see id. at 19 (EEOC Compl. ¶ 45).

On February 27, 2017, Kelly's supervisor issued a proposal to remove him from his employment with NTIA, citing 137 specifications, all of which Kelly maintains are “false.” Id. at 24 (OFO Decision at 2); id. at 4-5 (Am. Compl.). On April 14 he was removed. Id. at 4. Kelly contends he was terminated in retaliation for a December 2016 complaint he filed with the EEOC, although he does not provide the details of this complaint or further explain the series of events. Id. at 5.

B. Procedural History

The procedural background of this dispute is the only matter truly at issue today. It is complicated and, despite briefing and voluminous evidentiary submission from both parties, surprisingly mysterious. The following can be gleaned from Kelly's complaint and the materials attached thereto: On December 23, 2016 Kelly filed an administrative complaint with the EEOC and requested a hearing. Id. at 10 (referring to “Post-Investigation Processing of Complaint: 612016-00089”). It appears that this EEOC complaint is the same one that is attached to Kelly's complaint in this action. Id. at 14-21 (EEOC Compl.) (Agency No. 61-2016-00089). The Court assumes that it is, and it contains a litany of allegations, many of which mirror those alleged in Kelly's civil complaint and described above, but several of which do not. Compare id. at 4-5 (Am. Compl.), with id. at 14-21 (EEOC Compl.). Kelly never says what happened to this complaint after he filed it.

6

On September 24, 2020, the OFO issued a decision in a case involving Kelly. Dkt. 9 at 23 (OFO Decision at 1). But this decision does not correspond to the December 23, 2016 complaint. It instead appears to relate to a June 8, 2017 administrative complaint Kelly filed contesting his termination and asserting various discrimination claims, five of which the Department accepted for investigation and which in the main overlap with claims contained in Kelly's EEOC complaint. Id. at 24-25. As explained in the OFO opinion, after Kelly filed his June 8 administrative complaint with the Department, the Department bifurcated his removal claim from his other discrimination claims and instructed Kelly that he could request either an EEOC hearing or a final agency decision with respect to his discrimination claims. Id. at 25. The Department further informed Kelly that he had the right to a final agency decision on his removal, with an appeal to the Merit Systems Protection Board (“MSPB”). Id.

Kelly requested a final agency decision on his removal, the Department affirmed its action, and Kelly appealed that decision to the MSPB. Id. Before the MSPB, Kelly “raised affirmative defenses of disability-based disparate treatment, denial of reasonable...