Al'Zaiem v. Mayorkas

1

MOHI'DEAN D. AL'ZAIEM, Plaintiff, v. ALEJANDRO N. MAYORKAS, Defendant.

Civil Action No. 22-3804 (JEB)

United States District Court, District of Columbia

August 4, 2023

MEMORANDUM OPINION

JAMES E. BOASBERG, CHIEF JUDGE

Plaintiff Mohi'Dean Al'Zaiem brings this action against Department of Homeland Security Secretary Alejandro Mayorkas for discrimination under Title VII of the Civil Rights Act the Age Discrimination in Employment Act, and the Rehabilitation Act. He alleges that his supervisors subjected him to a hostile work environment and ultimately terminated him because of his race, color, national origin, religion age, disability, and in retaliation for his prior protected activity. He also maintains that he was denied reasonable accommodations for multiple medical conditions on multiple occasions. Defendant now cites two principal grounds in seeking dismissal or summary judgment: a contract between the parties that included a release of certain claims acts as a partial bar, and Al'Zaiem failed to exhaust administrative remedies for a smattering of his claims. The Court delivers a split verdict here, agreeing with DHS in part but not entirely.

I. Background

As the present Motion does not concern the particulars of the alleged discrimination, the Court recounts those facts only as necessary. For that task, it relies on the facts as pled in the Amended Complaint, assuming them to be true. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). It also considers the additional facts set forth in the undisputed documents incorporated in the Complaint and attached to the Motion that are integral to the claim, as well as matters of which it may take judicial notice, without converting this into a motion for summary judgment. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Pernice v. Bovim, No. 15-541, 2015 WL 5063378, at *3 (D.D.C. Aug. 26, 2015) (explaining courts may consider documents attached by defendant to motion to dismiss “if they are integral to its claim, they are referred to in the complaint, and their authenticity is undisputed”).

On April 16, 2017, Al'Zaiem began his tenure with the United States Citizenship and Immigration Services as an Immigration Services Officer in the Overland Park, Kansas, National Benefits Center. See ECF No. 14 (Amended Complaint), ¶¶ 23, 38. He transferred to the Potomac Service Center (PSC) on April 1, 2018, where he reports his troubles began. Id., ¶ 27. He was assured before the transfer that he had completed his probationary period at USCIS and would not have to meet any new-employee requirements for a second time at the PSC. Id., ¶ 38. When he arrived, however, the story had changed - despite his year of experience, he still had to submit a new application for flexible work arrangements and receive new employee training, and he was not eligible to receive overtime. Id. Al'Zaiem's new supervisors at the PSC allegedly began harassing him by “falsely accus[ing] [him] of being late” and “subject[ing] [him] to increased scrutiny.” Id., ¶ 24. They also denied him training opportunities and “belittled, demeaned, and spoke[] to [him] slowly like he was stupid or could not understand English.” Id., ¶¶ 39-40. Plaintiff alleges that this pattern of harassment culminated in his placement on “an undeserved performance improvement plan” (PIP) on April 4, 2019. Id., ¶ 42. By June 11, 2019, Al'Zaiem learned that he had failed the PIP. Id., ¶¶ 46. USCIS proposed his removal on July 30 of that year and issued a notice of decision to remove on November 22, 2019. Id., ¶¶ 49, 53.

Rather than effectuate its decision right away, however, USCIS offered Al'Zaiem the option to enter into an Abeyance Agreement, a type of employment contract sometimes referred to as a last-chance agreement. Id., ¶ 53. Under its terms, USCIS would postpone Al'Zaiem's removal for some time in exchange for his acceptance of a demotion, his acknowledgement that his performance had been inadequate, and his agreement that “any further unacceptable performance or misconduct, as . . . determined by the Agency in its sole and exclusive discretion” would result in his removal. See ECF No. 19-2 (Abeyance Agreement) at 1-2.

The Agreement also included two explicit waivers: one of “any and all appeal and other review rights over [Al'Zaiem's] voluntary reassignment/demotion,” Id. at 1, and another of “his right to appeal the removal [following further unacceptable performance] in any forum, including but not limited to grievance, arbitration, administrative, and judicial.” Id. at 2. Plaintiff signed the Agreement on November 22, 2019, buying himself a few months' reprieve. Id. at 5. But the Agreement reared its head on June 25, 2020, when USCIS notified Al'Zaiem that he had breached its terms - by disregarding a supervisor's instructions and going “AWOL” during the workday - and carried out his removal. See Am. Compl., ¶ 55.

The scrutiny at and removal from the PSC are only half of what Al'Zaiem believes made his time there so difficult. His employment was also marked by a series of denied disabilityaccommodation requests. Plaintiff suffers from, as relevant here, chronic pain in his right thumb. Id., ¶ 25. He was also diagnosed in late 2018 and early 2019 with ADD and ADHD. Id. Al'Zaiem reports that he sought accommodations for these conditions “[b]eginning in June 2018 through his removal.” Id., ¶ 28. Specifically, he requested “varied work assignments . . . from computer to paper form to limit the pain in [his] hand, permission to regularly take breaks of 1520 minutes every 2 or 3 hours [and] not sit for prolong[ed] periods of time as well as modification of his duties . . . [to] lessen computer form work on one end but task him with more complex cases that would keep his attention.” Id. His entreaties were met with just one modest response - an ergonomic computer mouse for his hand pain, which did not meaningfully alleviate his discomfort. Id., ¶¶ 29-30. Al'Zaiem also requested accommodations when he sustained an arm injury in May 2020 that made it difficult for him to use a computer. See ECF No. 19-3 (Motion to Amend) at 4-5. That request was similarly denied. Id.

In late 2018, Plaintiff participated in an EEO mediation related to problems between him and his immediate supervisor, but he never filed a formal EEO complaint about those concerns. See Am. Compl., ¶ 8. He filed a formal complaint only much later, on September 29, 2019, alleging discrimination and harassment beginning in May 2018. Id., ¶ 10. The agency accepted investigation of all claims except those he had previously raised but never filed a complaint about. See ECF No. 19-1 (Report of Investigation) at 3-4. Al'Zaiem then requested a hearing before the EEOC on his claims. See Am. Compl., ¶ 12. He moved to amend his EEOC complaint multiple times, first on December 31, 2020, but the EEOC did not allow amendment. Id., ¶¶ 13-14; Motion to Amend; ECF No. 19-5 (EEOC Case Management Order) at 1-2. The EEOC ultimately dismissed Al'Zaiem's claims, the agency adopted that decision as its final order, and the Office of Federal Operations affirmed that final order upon Al'Zaiem's appeal. See Am. Compl., ¶¶ 15-18. Al'Zaiem next filed a pro se Complaint in this Court on December 27, 2022. See ECF No. 1 (Complaint). Following Defendant's first Motion to Dismiss, Plaintiff, now represented by counsel, amended the Complaint. The operative Amended Complaint alleges Title VII, ADEA, and Rehabilitation Act claims against Mayorkas in his official capacity. See Am. Compl., ¶¶ 4-5. Defendant now moves to dismiss or in the alternative for summary judgment, raising the same arguments as to both.

II. Legal Standard

As the Court considers only the Motion to Dismiss, it sets out that standard alone. Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails to “state a claim upon which relief can be granted.” Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “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) (internal quotations marks and citation omitted). In weighing a motion to dismiss, a court “may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the court] may take judicial notice.” St. Francis Xavier Parochial School, 117 F.3d at 624. The court “must treat the complaint's factual allegations as true and must grant [the] plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.'” Sparrow, 216 F.3d at 1113 (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citations omitted). It need not accept as true, however, “a legal conclusion couched as a factual allegation” or an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Rule 12(b)(1), conversely, permits dismissal of a complaint for lack of subject-matter jurisdiction. In general, courts must first address jurisdictional arguments before turning to the merits. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Co., 549 U.S. 422, 430-31 (2007). A plaintiff bears the burden of proving that a court has subject-matter jurisdiction to hear her claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting...