Spence v. Wolf

BRIAN SPENCE, Plaintiff, v. CHAD WOLF, Defendant.

Civil Action No. 19-2919 (TJK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

October 15, 2020

MEMORANDUM OPINION

Brian Spence is a forty-eight-year-old disabled veteran with mild hearing loss. He works as an Emergency Services Specialist for the United States Secret Service and in July 2017, he interviewed for a position as a Physical Security Specialist. After he was not selected for the position, Spence contacted the Secret Service's Equal Employment Opportunity Office to raise his concern that this decision was discriminatory. Spence ultimately filed a formal EEO complaint, which was dismissed for failure to comply with regulatory deadlines. Spence now brings four claims, alleging disparate impact and disparate treatment under both the Age Discrimination and Employment Act and the Rehabilitation Act of 1973. Defendant has moved to dismiss all claims for failure to administratively exhaust and for failure to state a claim upon which relief can be granted. For the reasons explained below, the Court will grant Defendant's motion and dismiss the case.

I. Background

In July 2017, Spence interviewed for a Physical Security Specialist position within the United States Secret Service ("Secret Service"). ECF No. 1 ("Compl.") ¶¶ 17-18. Shortly after the interview, he accepted a conditional offer of employment contingent on successful completion of a polygraph and physical examination. Id. ¶¶ 19-20. On January 10, 2018, after completing the polygraph and physical examination, Spence received a letter stating that he was not selected for the position. Id. ¶¶ 21-23. The letter said that Spence was "no longer among the best qualified" and that a "better qualified applicant" had been selected. Id. It contained no reference to Spence's physical examination or potential medical disqualification. Id. ¶ 24.

On February 13, 2018, Spence emailed the Secret Service Equal Employment Opportunity (EEO) Office about the disqualification notice, expressing his view that he had been denied the job because of his disability. Id. ¶ 27; ECF No. 12 ("Opp'n") at 8.¹ EEO Assistant Kyong Kim connected Spence to EEO Disability Program Manager David Bruce to discuss his email. Opp'n at 8. After Bruce spoke with Spence, he referred him back to Kim. ECF No. 10-2 ("Def. Ex.") at 43. On February 22, Kim emailed Spence to describe the EEO complaint process—including the requirement that it start within 45 calendar days—and reviewed the process with Spence by phone. Opp'n at 8. Spence alleges that Kim told him on the phone that he could not file an EEO complaint until he received notice of the specific basis for his disqualification. Compl. ¶ 28; Opp'n at 8.

Spence then contacted Special Agent in Charge Kim Cheatle to determine this reason. Compl. ¶ 29. According to Spence, Cheatle then contacted the Health and Safety Unit, which informed Cheatle that the only way to obtain the information was to file a FOIA request, and Spence did so. Opp'n at 9. On February 26, 2018, Spence emailed Kim to inform him of his FOIA request. Id. Kim emailed Spence the next day to warn him that failure to start the pre-complaint process within the 45-day period could lead to dismissal of any EEO complaint foruntimeliness and advised Spence to schedule an intake interview if he wished to pursue an EEO complaint. Def. Ex. at 7. Spence did not reinitiate contact with the Secret Service EEO Office again until nearly a year after his initial outreach. Compl. ¶ 33.

Meanwhile, Spence continued to pursue his FOIA request and also reached out to various officials, including Ombudsman Paul Tyron, to learn the specific reason for his disqualification. Compl. ¶ 31; Opp'n at 10. In December 2018, Tyron received confirmation that Spence had been medically disqualified and informed Spence of that on January 25, 2019. Compl. ¶ 32; Opp'n at 10. Spence then contacted the Secret Service EEO office to launch the pre-complaint process, making initial contact on February 1, 2019 and completing an intake interview four days later. Compl. ¶ 33; Opp'n at 10. On March 9, 2019, Spence filed a formal complaint alleging discrimination based on his age and disability. Compl. ¶ 34; Opp'n at 10; Def. Ex. at 26-27.² In May 2019, Secret Service sent a letter to Spence confirming that his hearing loss rendered him ineligible for the Physical Security Specialist position and that notification of the specific reason for his disqualification was delayed "because of an administrative oversight." Compl. ¶¶ 36-37.

In July 2019, the Department of Homeland Security ("DHS") Office for Civil Rights and Civil Liberties ("CRCL") dismissed Spence's EEO complaint for violating the time limits for beginning the pre-complaint process or to provide "adequate justification which would warrant the waiver, estoppel, or tolling of the time limit." Def. Ex. at 5-9. DHS CRCL notified Spenceof his right to file a civil action with the appropriate United States District Court within 90 days of the final administrative decision. Id. at 10-11.

On September 27, 2019, Spence filed this action under the Age Discrimination and Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 790 et seq. Spence alleges disparate treatment under the ADEA, Compl. ¶¶ 49-59 ("Count I"), and Rehabilitation Act, id. ¶¶ 70-78 ("Count III"), and disparate impact under the ADEA, id. ¶¶ 60-69 ("Count II") and Rehabilitation Act, id. ¶¶ 79-86 ("Count IV").³ Before the Court is Defendant's motion to dismiss Spence's complaint under Rules 12(b)(1) for failure to administratively exhaust and under Rule 12(b)(6) for failure to state a claim. ECF No. 10 ("Def. MTD").

II. Legal Standards

To survive a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a plaintiff bears the burden of showing that the court has such jurisdiction. Doak v. Johnson, 19 F. Supp. 3d 259, 267 (D.D.C. 2014) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). "When reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court must accept as true all of the factual allegations contained in the complaint." Gordon v. Office of the Architect of the Capitol, 750 F. Supp. 2d 82, 86 (D.D.C. 2010). Still, the Court must give a plaintiff's factual allegations closer scrutiny than it would under a 12(b)(6) motion, to ensure it is acting within the scope of its jurisdiction. Doak, 19 F. Supp. 3d at 267. The Court is thus "not limited to the allegations set forth in the complaint, but 'may consider materials outside [of] the pleadings.'"Ragsdale v. Holder, 668 F. Supp. 2d 7, 14 (D.D.C. 2009) (quoting Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)).

To survive a Rule 12(b)(6) 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court must construe the complaint in the light most favorable to the plaintiff, but the plaintiff "must furnish 'more than labels and conclusions' or a 'formulaic recitation of the elements of a cause of action.'" Tyler v. D.C. Hous. Auth., 113 F. Supp. 3d 88, 90 (D.D.C. 2015) (quoting Twombly, 550 U.S. at 555).

When reviewing a 12(b)(6) motion, "a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice." Fort Sill Apache Tribe v. Nat'l Indian Gaming Comm'n, 103 F. Supp. 3d 113, 117 (D.D.C. 2015). Generally, if a court relies on matters outside the pleadings, then a motion to dismiss must be treated as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d). "However, where a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment." Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 F.App'x 4 (D.C. Cir. 2002). "Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). "Moreover, a document need not be mentioned by name to be considered referred to or incorporated by reference into thecomplaint." Strumsky v. Washington Post Co., 842 F. Supp. 2d 215, 218 (D.D.C. 2012) (quotation marks omitted).

A court may consider a plaintiff's EEO complaint and notice of charge without converting a motion to dismiss into a motion for summary judgment "because such records are public documents of which a court may take judicial notice." Sanders v. Kerry, 180 F. Supp. 3d 35, 41 (D.D.C. 2016) (cleaned up). A court may also rely on final agency decisions, especially to the extent they provide "background information such as dates of filings." Vasser v. McDonald, 228 F. Supp. 3d 1, 10 (D.D.C. 2016); see also Williams v. Chu, 641 F. Supp. 2d 31, 34-35 (D.D.C. 2009) (relying on date EEOC denied appeal and date the plaintiff received notice of denial to decide on merits).

III. Analysis

A. Rehabilitation Act Claims

Spence asserts two claims under the Rehabilitation Act: that he was disparately treated as a result of his disability—hearing loss—and that the hearing requirements for the Physical Security Specialist position disparately impact the disabled. Defendant argues that both claims should be dismissed under Rule 12(b)(1) for lack of subject-matter jurisdiction because Spence failed to exhaust available administrative remedies.

The Rehabilitation Act al...