                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 MARSHA HOUSER,

                        Plaintiff,

                        v.                         Case No. 16-cv-1628 (CRC)

 DAVID J. SHULKIN, 1 Secretary,
 Department of Veteran Affairs

                        Defendant.

                                     MEMORANDUM OPINION

       Marsha Houser, a former employee of the United States Department of Veteran Affairs,

brought suit against her former employer alleging discrimination on the basis of race in violation

of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and discrimination on the basis of

disability and retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 794. 2 Defendant

David J. Shulkin, the Secretary of the Department of Veteran Affairs, moved for dismissal or, in

the alternative, for summary judgment. Because Houser failed to properly exhaust her

administrative remedies, the Court grants Defendant’s motion.




       1
         By operation of Fed. R. Civ. P. 25(d), the current Secretary of the Department of
Veteran Affairs, as former Secretary Robert A. McDonald’s successor, has been “automatically
substituted as a party.”
       2
         In her complaint, Houser refers to the Americans with Disabilities Act. Compl. 5. But
since the Americans with Disabilities Act does not apply to the federal government, see 42
U.S.C. § 12111(5)(B)(i), the Court assumes she meant to refer to the Rehabilitation Act.
   I.       Background

         Marsha Houser is an African-American woman who formerly worked in the Department

of Veteran Affairs. Compl. ¶ 4. Following nine years of service in the United States Army, she

was diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder. Compl.

¶¶ 6–7. On February 11, 2014, Houser submitted a request for an accommodation due to her

disability. Compl. ¶ 14; Def’s. Mot. Dismiss, or Alternatively, for Summ. J. Ex. A (“Demarins

Decl.”), Ex. 1, at 88. She followed up with a second request for an accommodation on April 4,

2014. Compl. ¶ 17; Demarins Decl. Ex. 1, at 29, 61–64. The agency promptly responded with

an email asking for further documentation regarding which “aspects of [Houser’s] job requires

[her] to have accommodation.” Demarins Decl. Ex. 5, at 44. Houser submitted a third request

for an accommodation on October 30, 2014. Compl. ¶ 24; Demarins Decl. Ex. 1, at 29, 33–34.

Less than a month later, on November 21, 2014, Houser met with an Equal Employment

Opportunity (“EEO”) Counselor at the Department, alleging that she was discriminated against

because of her disability. Def.’s Mot. Dismiss, or Alternatively, for Summ. J. Ex. B (“Johnson

Decl.”) ¶ 2 & Ex. 1, at 1. This informal counseling process proved unsuccessful and on February

11, 2015, Houser received a letter notifying her of the opportunity to file a complaint related to

her allegations. Johnson Decl. ¶ 4 & Ex. 2, at 1. Ultimately, her EEO case was closed on March

10, 2015, with the reason listed as “[w]ithdrawal (no formal complaint filed).” Johnson Decl.

Ex. 4.

         On December 1, 2014, Houser was terminated from employment at the Department.

Demarins Decl. ¶ 2. She filed an appeal of this adverse personnel action to the Merit Systems

Protection Board (“MSPB”) the next day. Demarins Decl. ¶ 3 & Ex. 1, at 2–4. After being

permitted to withdraw her complaint due to family medical issues, Houser re-filed with the



                                                 2
MSPB on October 1, 2015. Demarins Decl. ¶¶ 4, 7; id. Ex. 2, at 2 (MSPB order); id. Ex. 4, at 2

(MSPB complaint). In her proceeding before the MSPB, Houser raised affirmative defenses of

discrimination on the basis of disability and retaliation for whistleblowing activities. Demarins

Decl. Ex. 10, at 1. The MSPB ordered Houser to present evidence on her affirmative defenses

and to respond to the Department’s associated discovery requests. Id.; id. at 7 (MSPB order of

April 18, 2016). When she failed to do so, the MSPB barred her from raising these claims or

introducing evidence on them at her hearing. Demarins Decl. Ex. 11, at 2–3 (MSPB order of

May 12, 2016). The MSPB ultimately upheld Houser’s removal on May 31, 2016. Demarins

Decl. Ex. 12, at 1 (MSPB order). Houser then appealed this decision to the Equal Employment

Opportunity Commission (“EEOC”), which denied her appeal on the basis that the MSPB had

not addressed any matters within the EEOC’s jurisdiction. Demarins Decl. Ex. 13, at 1 (EEOC

order of July 8, 2016).

       While her MSPB case was pending, Houser again contacted an EEO Counselor on March

2, 2016, once more raising her allegation of discrimination on the basis of disability and

retaliation in the form of the Department’s failure to accommodate and its termination of Houser

in December 2014. Johnson Decl. ¶ 12 & Ex. 8, at 2. Houser received her notice of the right to

file a complaint on April 26, 2016, and she filed a formal complaint with the agency on May 1.

Johnson Decl. ¶¶ 15–16; id. Ex. 9, at 1 (right to file letter); id. Ex. 10, at 1 (complaint). This

compliant was dismissed by the agency as untimely since Houser had raised the same allegations

in 2014 yet did not file a timely formal complaint at that time. Johnson Decl. ¶ 17 & Ex. 11.

       On August 18, 2016, Houser filed the present suit against the Department in this Court.

She raised three claims: discrimination on the basis of race, discrimination on the basis of

disability, and retaliation for engaging in activities protected by the Rehabilitation Act. Compl 5.



                                                  3
   II.       Standard of Review

          The Department has filed a motion to dismiss under Rule 12(b)(6) or, in the alternative,

for summary judgment under Rule 56. Where, as here, “matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for summary

judgment under Rule 56.” Fed. R. Civ. P. 12(d); see also Center for Auto Safety v. Nat’l

Highway Transp. Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006). Such treatment is

appropriate if the parties are “given a reasonable opportunity to present all the material that is

pertinent to the motion.” Fed. R. Civ. P. 12(c). Houser has been accorded a reasonable

opportunity to respond and present evidence given that the Department styled its motion as one

for summary judgment in the alternative and presented all materials relied on herein as

declarations and exhibits to that motion. See, e.g., Center for Auto Safety, 452 F.3d at 805. The

Court will therefore treat the Department’s motion as one for summary judgment.

          Summary judgment is appropriately granted when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, the Court must

“‘examine the facts in the record and all reasonable inferences derived therefrom in a light most

favorable to’ the nonmoving party.” Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation

omitted).

   III.      Analysis

          Federal law protects federal employees from discrimination on the basis of their race or

disability in employment. See 29 U.S.C. § 794 (disability); 42 U.S.C. § 2000e-2 (race). If a

federal employee wishes to bring suit against her employer alleging a violation of her rights, she

must first “navigate a maze of administrative processes[.]” Niskey v. Kelly, 859 F.3d 1, 5 (D.C.



                                                  4
Cir. 2017). These procedures are the same for claims under both Title VII and the Rehabilitation

Act. 29 C.F.R. § 1614.103(a).

       First, an aggrieved party must consult with the federal agency’s Equal Employment

Opportunity (“EEO”) Counselor within 45 days of the allegedly discriminatory incident. 29

C.F.R. § 1614.105(a). At this initial session, the EEO Counselor informs the employee of her

rights and responsibilities. Id. § 1614.105(b)(1). If the informal counseling process proves

unsuccessful, the EEO Counselor must inform the employee of her right to file a complaint. Id.

§ 1614.105(d). The employee must file her formal complaint with the agency within 15 days of

receiving such notice. Id. § 1614.106(b). The agency then has 180 days to complete its

investigation of the complaint. Id. § 1614.108(e). Upon receiving a final agency decision, the

employee may either appeal to the EEOC within 30 days or go straight into federal court within

90 days. Id. §§ 1614.402(a), 1614.407(a).

       This case, however, presents an additional wrinkle: Houser’s case involves a “mixed

case,” where “the asserted claim (or claims) both arises under a federal employment

discrimination law (such as Title VII) and also relates to or stems from an action that is within

the jurisdiction of the Merit Systems Protection Board,” such as Houser’s dismissal. Niskey, 859

F.3d at 6. In such a case, the employee has the option of “forgo[ing] the internal agency

exhaustion process and tak[ing] [her] claim directly to” the MSPB. Id. at 7. If the MSPB

upholds the agency action, the employee may then pursue review before the EEOC or directly in

federal court. Id.

       Houser’s complaint alleges three claims. Because Houser stopped partway through the

administrative process for each of these claims, summary judgment is appropriate for the

Department on all counts.



                                                 5
       A.      Count I: Race Discrimination

       First, Houser alleges discrimination on the basis of race in violation of Title VII. This

claim, however, fails to cross the first hurdle for exhaustion: Houser never raised racial

discrimination with an EEO Counselor. The report from Houser’s first meeting with an EEO

Counselor, in November 2014, states that her claim was solely “discrimination on the basis of

disability (physical).” Johnson Decl. Ex. 1, at 2.

       Of course, because this is a mixed case, her failure to contact an EEO Counselor might be

excused if Houser raised her racial discrimination claim before the MSPB. See Niskey, 859 F.3d

at 7. But the record from the MSPB proceeding is similarly devoid of any references to racial

discrimination. See Demarins Decl. Ex. 10, at 1 (MSPB order of April 18, 2016 listing the

affirmative defenses raised by Houser as “discrimination (failure to accommodate), retaliation

(whistleblowing), and harmful procedural error”). Because Houser never raised her racial

discrimination claim with an EEO Counselor or before the MPSB, she failed to exhaust her

administrative remedies as to it.

       B.      Count II: Disability Discrimination

       Next, Houser alleges discrimination on the basis of disability in violation of the

Rehabilitation Act. In contrast to her race discrimination claim, Houser did raise this claim with

the EEO Counselor at their November 2014 meeting. Johnson Decl. Ex. 1, at 2. But Houser has

presented no evidence to contradict the Department’s credible evidence that no formal complaint

was filed within fifteen days of her February 11, 2015 right to file letter, see Johnson Decl. ¶ 8

(“[The agency] has no record of receiving a formal complaint from Houser. . . .”); id. Ex. 4

(agency record showing Houser’s EEO case status as “[w]ithdrawal (no formal complaint




                                                 6
filed)”). Houser thus failed to properly complete the internal administrative review process for

her disability discrimination claim.

       Again, this failure could be excused had Houser litigated her disability discrimination

claims before the MSPB. See Niskey, 859 F.3d at 7. Houser admittedly raised disability

discrimination to the MSPB. See Demarins Decl. Ex. 10, at 1 (MSPB order of April 18, 2016

noting that Houser raised an “affirmative defense[] of disability discrimination”). But Houser

ultimately abandoned her disability discrimination argument. The MSPB’s April 18, 2016 order

obligated Houser to “specifically identify the factual bases for [this] claim[]” and warned that

“failure to supply the required information will result in [this claim] being excluded from the

hearing.” Demarins Decl. Ex. 10, at 1; see also id. at 7 (“Failure to respond fully and completely

to the information required to support the identified affirmative defenses will result in the

exclusion of evidence from the hearing and from consideration in the appeal.” (emphasis in

original)). Houser “failed to respond in any way to the Order on affirmative defenses” and never

“responded to the agency’s discovery requests in relation to” her disability discrimination claim.

Demarins Decl. Ex. 11, at 2 (MSPB Order of May 12, 2016). For this reason, the MSPB

excluded any consideration of her disability discrimination defense. Id. at 2–3.

       The D.C. Circuit has recognized that a plaintiff is barred from raising claims before a

court when she has “refused to cooperate in [the administrative] process.” Butler v. West, 164

F.3d 634, 643 (D.C. Cir. 1999); see also Koch v. White, 744 F.3d 162, 165 (D.C. Cir. 2014) (“A

plaintiff’s suit ‘will be barred for failure to exhaust administrative remedies’ if he ‘forces an

agency to dismiss or cancel the complaint by failing to provide sufficient information to enable

the agency to investigate the claim.’” (quoting Wilson v. Peña, 79 F.3d 154, 164 (D.C. Cir.

1996)). By failing to respond to the MSPB’s order, answer the Department’s discovery requests,



                                                  7
or introduce evidence to support her claims, Houser failed to cooperate in the administrative

process and abandoned her disability discrimination claim before the MSPB. She therefore

cannot now raise it in federal court.

       C.      Count III: Retaliation

       Finally, Houser alleges that the Defendant retaliated against her because of her protected

activities. Houser’s briefing clarifies that this protected activity is her “request for reasonable

accommodation.” Pl.’s Opp’n to Def. Mot. Dismiss 10. But as with Houser’s racial

discrimination claim, she did not raise a retaliation claim with the EEO Counselor in 2014. See

Johnson Decl. Ex. 1, at 2. Nor did Houser raise such a claim before the MSPB—the MSPB

order states that her retaliation claim was related to “whistleblowing” rather than a request for

accommodation. Demarins Decl. Ex. 10, at 1 (MSPB order of April 18, 2016). In any event,

Houser abandoned the retaliation claim before the MSPB just as she did the disability

discrimination claim. See Demarins Decl. Ex. 11, at 2–3 (MSPB order of May 12, 2016).

Because Houser did not either timely raise this claim with an EEO Counselor or fully litigate it

before the MSPB, she failed to exhaust her administrative remedies. 3




       3
         Nor does Houser’s second round of contact with the EEO Counselor suffice to exhaust
any of her claims. Her complaint concerns events from 2014. See, e.g., Compl. ¶ 27 (“On
November 25, 2014, Ms. Houser was notified that her position with Defendant was
terminated.”). Employees must initiate contact with an EEO Counselor within 45 days of the
alleged violation. 29 C.F.R. § 1614.105(a). A meeting on March 2, 2016, clearly falls more than
45 days after any events in 2014.

                                                  8
   IV.      Conclusion

         For the foregoing reasons, the Court will grant Defendant’s motion. A separate Order

accompanies this Memorandum Opinion.




                                                            CHRISTOPHER R. COOPER
                                                            United States District Judge

Date: August 28, 2017




                                                9
