                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                              )
VALERY LOUIS,                                 )
                                              )
              Plaintiff,                      )
                                              )
       v.                                     )           Civil Action No. 15-cv-92 (TSC)
                                              )
CHUCK HAGEL                                   )
Secretary, U.S. Department of Defense,        )
                                              )
              Defendant.                      )
                                              )


                                  MEMORANDUM OPINION

        Plaintiff Valery Louis brings this action against the Department of Defense (“DOD”)

alleging that the agency discriminated against him based on his race and national origin in

violation of Title VII, 42 U.S.C. § 2000e et seq.1 Plaintiff also alleges that he was constructively

discharged. Defendant unsuccessfully challenged venue in this district and, after a scheduling

conference, the parties agreed on a briefing schedule for pre-discovery motions. The court

entered an order adopting the agreed-upon deadlines and Defendant filed a timely motion to

dismiss. (ECF No. 20). However, Plaintiff has not filed a response to the motion, nor has he

sought leave to extend his response deadline of August 16, 2016. (See ECF No. 19). Therefore,

this court could treat Defendant’s arguments as conceded. See Local Civil Rule 7(b). However,

for the reasons set forth below, the court will GRANT Defendant’s motion in part, and DENY

the motion in part.

																																																								
1
   In his Corrected Complaint, Plaintiff cites to 5 U.S.C. § 7702, which governs
administrative review of discrimination claims by federal employees and sets forth the
circumstances under which judicial review is available. Despite Plaintiff’s citation to this
provision, the court construes his claims as Title VII, 42 U.S.C. § 2000e, discrimination
claims because Plaintiff repeatedly refers to “Title VII” in the Corrected Complaint.
                                                  --1--
A. BACKGROUND

       Plaintiff describes himself as an “Afro-American of Haitian national origin[ ].” (ECF

No. 6, Corrected Compl. ¶ 7).2 He is a former employee with the Defense Information Systems

Agency (“DISA” or “Agency”)—a component division within DOD. Plaintiff alleges that

during his employment, he “was subjected to racial and national origin epithets from other

members of DISA’s staff” and that he was the victim of “physical assaults motivated by . . .

hostility to his race and national origin.” (Id. ¶ 5). He claims that the assaults “included the

administration of a gas which rendered [him] unconscious” and the administration of acid

droplets that caused him “facial injuries.” (Id.) Allegedly fearing for his safety, Plaintiff

resigned and DISA subsequently revoked his “classification,” which the court interprets as his

security clearance. (Id.)

       Plaintiff asserts three causes of action: disparate treatment (Count I);3 hostile work

environment (Count II); and constructive discharge (Count III). Defendant has moved to dismiss

for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to exhaust

administrative remedies, Fed. R. Civ. P. 12(b)(6).

B. STANDARD OF REVIEW

       1. Rule 12(b)(1)



																																																								
2
     Plaintiff’s Corrected Complaint contains two paragraphs labeled number seven. In this
Opinion, any citations to paragraph seven refer to the second paragraph.
3
   Plaintiff alleges that he experienced disparate treatment when the DOD: (1) subjected him to
“racial and ethnic insults and grotesque physical abuse”; and (2) suspended his security
clearance. (Corrected Compl. ¶ 7). As this court pointed out in its prior Opinion, “[t]he contours
of Plaintiff’s disparate treatment claim are not clear . . . because the only obvious adverse
employment action he mentions in his Complaint involves the revocation of his security
clearance.” Louis v. Hagel, No. 15-cv-92 (TSC), 2016 WL 1301050, at *1 (D.D.C. Apr. 1,
2016).
                                                --2--
       In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter

jurisdiction, a court must “assume the truth of all material factual allegations in the complaint

and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be

derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.

2011) (citation omitted). “Nevertheless, ‘the court need not accept factual inferences drawn by

plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the

Court accept plaintiff’s legal conclusions.’” Disner v. United States, 888 F. Supp. 2d 83, 87

(D.D.C. 2012) (citation omitted). Importantly, the court “is not limited to the allegations of the

complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other

grounds, 482 U.S. 64 (1987). Rather, a court may consider “relevant facts found outside of the

complaint” when resolving a Rule 12(b)(1) motion to dismiss for lack of jurisdiction. Mendoza

v. Perez, 754 F.3d 1002, 1016 n.9 (D.C. Cir. 2014).

       2. Rule 12(b)(6)

       A motion to dismiss under Rule 12(b)(6) for failure to state a claim “tests the legal

sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To

survive a 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)

(internal quotation marks and citation omitted). In most instances, when deciding a Rule

12(b)(6) motion, 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.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.

1997). Additionally, “the Court may consider documents specifically referenced in the

complaint where the authenticity of the document is not questioned.” United Mine Workers of



                                                --3--
Am., Int’l Union v. Dye, No. CIV.A. 06-1053(JDB), 2006 WL 2460717, at *6 (D.D.C. Aug. 23,

2006); New York State Bar Ass’n v. F .T.C., 276 F. Supp. 2d 110, 114 n.6 (D.D.C. 2003) (noting

that “a document is not ‘outside’ the complaint if the complaint specifically refers to the

document and if its authenticity is not questioned.”) (quoting Cooper v. Pickett, 137 F.3d 616,

622–23 (9th Cir. 1997)). 4

C. ANALYSIS

       Defendant seeks dismissal on the grounds that: (1) this court does not have jurisdiction to

consider Plaintiff’s claims relating to his security clearance; and (2) Plaintiff failed to exhaust his

administrative remedies with respect to his claims regarding racial/national origin epithets and

physical assaults.

       1. Disparate Treatment - Security Clearance

       In its prior Opinion, this court warned Plaintiff that any claims regarding revocation of

his security clearance had to be considered in light of this court’s decision in Hendrix v.

Napolitano, 77 F. Supp. 3d 188, 194–96 (D.D.C. 2015). See Louis v. Hagel, No. 15-CV-92

(TSC), 2016 WL 1301050, at *1 n.2 (D.D.C. Apr. 1, 2016). In Hendrix, this court explained that

“a court may not review a decision regarding suspension or revocation of a . . . Security

clearance, because such decisions are nonjusticiable under” Department of the Navy v. Egan, 484

U.S. 518 (1988). 77 F. Supp. 3d at 194; see also Rattigan v. Holder, 689 F.3d 764, 766 (D.C.

																																																								
4
     Resolving Defendant’s motion on the exhaustion issue requires the court to consider two
documents outside of the Corrected Complaint: (1) Plaintiff’s EEO charge; and (2) Defendant’s
“Notice of Acceptance of Discrimination Complaint” (“Determination Letter”). Plaintiff has not
challenged the authenticity of these two documents, and references the EEO charge in his
Corrected Complaint (Corrected Compl. ¶ 1). Plaintiff also refers to the Determination Letter in
his Corrected Complaint (Id. ¶¶ 1, 3), and repeatedly cites to the Letter in the opposition papers
he filed in response to Defendant’s first motion to dismiss. (See ECF No. 10, Pls. Response, pp.
4, 6–7, 9; ECF No. 12, Plaintiff’s Clarification Motion, p. 3). Thus, the authenticity of that
document is not at issue.


                                                 --4--
Cir. 2012) (noting that the Circuit interpreted Egan as barring “judicial review of adverse

employment actions based on the denial or revocation of a security clearance.”) (citations

omitted); cf. Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009) (“Therefore, following the

lead of the Supreme Court, we have consistently held that because the authority to issue a

security clearance is a discretionary function of the Executive Branch, actions based upon denial

of security clearance are committed to agency discretion by law, at least where a constitutional

claim is not properly presented.”) (citations omitted).

       Citing Egan, Defendant argues that this court must dismiss Plaintiff’s claims regarding

the revocation of his security clearance. The court agrees. Plaintiff did not assert any facts or

cite to any legal authority in his Corrected Complaint that might support maintenance of his

security clearance claim, and he has not responded to Defendant’s motion. Accordingly, the

court will grant DOD’s 12(b)(6) motion to dismiss the security clearance claim as conceded. See

Local Civil Rule 7(b).

       2. Hostile Work Environment/Constructive Discharge

       Next, Defendant argues that Plaintiff’s claims regarding racial/national origin epithets

and physical assaults are not actionable because Plaintiff failed to exhaust his administrative

remedies. After filing an EEO charge, a plaintiff may bring a lawsuit only for “claims that are

‘like or reasonably related to the allegations of the charge and growing out of such allegations.’”

Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citation omitted).

       A vague or circumscribed . . . charge will not satisfy the exhaustion requirement
       for claims it does not fairly embrace. Allowing a complaint to encompass
       allegations outside the ambit of the predicate . . . charge would circumvent the
       EEO[]’s investigatory and conciliatory role, as well as deprive the charged party
       of notice of the charge, as surely as would an initial failure to file a timely . . .
       charge.




                                                --5--
Marshall v. Fed. Exp. Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (internal quotations and

citation omitted). Therefore, “[a]t a minimum, the Title VII claims must arise from ‘the

administrative investigation that can reasonably be expected to follow the charge of

discrimination.’” Jackson v. Gallaudet Univ., No. CV 14-2074 (TSC), 2016 WL 953217, at *2

(D.D.C. Mar. 14, 2016) (citing Park, 71 F.3d at 907).

       Because failure to exhaust is an affirmative defense, the defendant bears the burden of

proof on this issue. Hairston v. Tapella, 664 F. Supp. 2d 106, 110 (D.D.C. 2009). Once a

defendant has met its burden, the burden shifts to the plaintiff to make the case that dismissal is

not warranted. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).

       In his EEO charge, Plaintiff “checked the box” for national origin and race and

explained:

       Treated differently from other employees due to race and national origin. More
       details on other sheets.

(Def. Ex. 1).5 Neither party placed the “other sheets” in the record here, but Defendant provided

a copy of the Determination Letter that the agency sent Plaintiff in response to his EEO Charge.

(Def. Ex. 2). In that Letter, the agency characterized Plaintiff’s allegations as follows:

       Based on a review of your discrimination complaint dated 30 November, 2012, it
       is understood that you are alleging you were discriminated against on the basis of
       your Race (Black) and National Origin (Haiti) and you were subjected to a hostile
       work environment culminating in constructive discharge from federal service
       when:

       l) On 15 Oct, 20l2, your access to classified information was suspended.

       2) On, or around, 16 Oct, 2012, you were forced to formally resign from federal
       service out of fear and concern for your safety.



																																																								
5
   While the EEO form contains a “box” to check for sexual harassment, the form does not
contain a “box” to check for harassment based on race or age. (See Def. Ex. 1).
                                                --6--
(Def. Ex. 2). The Letter also informed Plaintiff that if he believed the claims were not “correctly

identified,” he was to notify the agency within seven days of receiving the Letter or the agency’s

“definition” of the charge would be presumed correct. (Id.) Because Plaintiff did not contest the

agency’s description of his claim and because the agency purportedly failed to accept Plaintiff’s

racial/national origin epithet and assault allegations for investigation, Defendant contends that

Plaintiff failed to exhaust his administrative remedies with respect to these allegations.

       Even in the absence of a response by Plaintiff, the court will deny Defendant’s motion

because the agency has not met its burden of establishing that Plaintiff failed to exhaust his

administrative remedies. First, the exhaustion “inquiry necessarily involves examining the facts

alleged in the EEO[] complaint to determine whether the [agency] had notice to investigate the

claims first before they were raised in court.” Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev.,

961 F. Supp. 2d 104, 110 (D.D.C. 2013) (citing Mangiapane v. Adams, 661 F.2d 1388, 1389

(D.C. Cir. 1981)); Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d Cir. 2008). But here, without a

copy of the “other sheets,” to which Plaintiff referred in his EEO complaint, the court is unable

to determine if “all of the material facts alleged in the complaint . . . were also alleged in the”

EEO charge. Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev., 961 F. Supp. 2d 104, 110

(D.D.C. 2013).

       Viewing the facts in the light most favorable to Plaintiff, however, the court finds that the

documents in the record suggest that Plaintiff did, in fact, complain to the agency about the

alleged assaults and racial/national origin epithets. The DOD’s Determination Letter indicates

that Plaintiff claimed to have resigned because he feared for his life, after being subjected to a

hostile work environment. (Def. Ex. 2). Moreover, after completing its investigation, the agency

issued an opinion that specifically discussed Plaintiff’s allegations regarding physical assaults



                                                 --7--
with acid and DISA employees making racial/national origin comments. (ECF No. 8, Def. Mot.

to Dismiss, Final Agency Decision, Ex. 1, pp. 2–4). Thus, there is evidence that Plaintiff not

only informed DOD about the challenged conduct, but that the agency also investigated his

claims. Accordingly, the agency’s failure to explicitly characterize his claims as including

allegations of assaults and racial/national origin epithets is not dispositive here.

       Moreover, the court rejects Defendant’s argument that Plaintiff’s failure to challenge the

DOD’s characterization of his claims as articulated in the Determination Letter means he failed

to exhaust his administrative remedies. As another Judge on this court has noted (in a decision

that was affirmed by the D.C. Circuit), a plaintiff’s failure to correct or to respond to the

agency’s Determination Letter is not a prerequisite to filing a Title VII lawsuit:

         [A]n acceptance-of-claims letter, though organizationally useful in clarifying the
         topics to be investigated, is not a mandated pre-investigation procedure under
         any statute or regulation insofar as the agency is not required to identify for the
         complainant the specific claims that it will investigate following an EEO
         complaint and the complainant is not required to respond within a certain time to
         avoid waiving those claims. But by putting the burden on the complainant to
         object to the agency’s acceptance-of-claims letter within the arbitrarily specified
         timeframe, courts shift the exhaustion onus from the agency to the individual
         without any legal basis for doing so. See Ortiz–Diaz v. U.S. Dep’t of Hous. &
         Urban Dev., 961 F. Supp. 2d 104, 111–12 (D.D.C. 2013) (holding that
         “agencies, not employees, have the burden of developing the administrative
         record,” and “that much plaintiff has done by having included racial
         discrimination on his EEOC complaint”).

Mokhtar v. Kerry, 83 F. Supp. 3d 49, 65–66 (D.D.C. 2015), aff’d, No. 15-5137, 2015 WL

9309960 (D.C. Cir. Dec. 4, 2015) (footnotes omitted)(emphasis in the original).

C. CONCLUSION

      For the reasons explained above, by separate order the court will GRANT DOD’s motion

on Plaintiff’s claims as they relate to his security clearance, but DENY without prejudice the




                                                 --8--
motion as to all other claims.



Date: October 28, 2016


                                 Tanya S. Chutkan
                                 TANYA S. CHUTKAN
                                 United States District Judge




                                  --9--
