                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               :
WILLIAM PORTER                 :
                               :
          Plaintiff,           :
                               :
     v.                        :
                               :
KATHLEEN G. SEBELIUS,          : Civil Action No. 11-1546 (GK)
Secretary of the United        :
States Department of Health    :
and Human Services,            :
                               :
          Defendant.           :
______________________________:

                                  MEMORANDUM OPINION

      Plaintiff William Porter (“Plaintiff” or “Porter”) brings

this action against Kathleen Sebelius in her official capacity

as   Secretary   of       the   Department   of   Health   and   Human   Services

(“Defendant” or “Secretary”). Plaintiff alleges discrimination,

retaliation, and hostile work environment in violation of Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e   et   seq.,    and       discrimination,   retaliation,    hostile     work

environment, and failure to provide a reasonable accommodation

in   violation       of     the    Federal   Rehabilitation      Act     of   1973

(“Rehabilitation Act”), 29 U.S.C. § 701 et seq. 1



1
  Although Plaintiff does not mention the Rehabilitation Act,
proceedings under section 501(b) of the Rehabilitation Act are
the exclusive remedy for federal employees alleging disability
discrimination by a federal agency. See Taylor v. Small, 350
F.3d 1286, 1291 (D.C. Cir. 2003).
     This matter is presently before the Court on Defendant’s

Motion    for   Partial     Dismissal       of    Plaintiff’s     Amended        and

Consolidated Complaint [Dkt. No. 49]. Upon consideration of the

Motion,   Opposition,     Reply,     and    Surreply,     the    entire     record

herein, and for the reasons stated below, Plaintiff’s Complaint

is dismissed without prejudice, and Defendant’s Motion is denied

without prejudice.

I.   BACKGROUND

     Porter, an African-American male, has worked as a Program

Analyst at the Department of Health and Human Services (“HHS”),

Administration    and    Finance     Operations    Section      (“AFS”)    of    the

Office of Financial Program Analysis (“OFPA”) in the Office of

the Assistant Secretary of Preparedness and Response since 2007.

Pl.’s Amended & Consolidated Complaint (“Complaint”) p. 3, ¶ 4.

     On May 24, 2010, Porter filed a complaint with the EEO

Section   of    the     Department     of    Health     and     Human     Services

(“Department”).    EEO    Complaint     Final    Agency   Decision,       June    3,

2011, at 2 n.1 [Dkt. No. 13-1]. The EEO Section permitted him to

file six amendments adding additional claims to his complaint

between July 1, 2010, and December 22, 2010. Id. On June 3,

2011, the Department issued its Final Agency Decision (“June

2011 FAD”) on those claims. Id. at 1.



                                      –2–
      On August 26, 2011, Porter filed a Complaint in this Court

seeking review of the June 2011 FAD. [Dkt. No. 1] On October 28,

2011, Porter’s attorney moved to withdraw [Dkt. No. 7], and his

Motion was granted by minute order on November 15, 2011.

      On April 8, 2011, Porter filed another complaint with the

EEO   Section      of   the    Department.         EEO    Complaint          Final      Agency

Decision,    Dec.       13,    2011    at     1.    The        EEO   Section        accepted

additional claims for investigation on May 2, 2011, and June 10,

2011. Id. at 3-4. On December 13, 2011, the Department issued

its FAD (“December 2011 FAD”) addressing Porter’s second amended

complaint. Id. at 1.

      On   March     13,   2012,      Porter      filed    a    second       Complaint      in

District Court seeking review of the December 2011 FAD. Case No.

12-392, Dkt. No. 1. On April 10, 2012, Case No. 12-1392 was

consolidated by minute order with Case No. 11-1546.

      On    August      16,    2012,    Porter’s          new    attorney          moved   to

withdraw. [Dkt. No. 34]          On     September         25,        2012,        the   Court

granted the Motion to Withdraw, and directed Porter to file an

amended and consolidated complaint. [Dkt. No. 43]

      Porter, proceeding pro se, timely filed the amended and

consolidated Complaint on October 26, 2012 [Dkt. No. 47]. On

November    27,    2012,      Defendant      filed       her    Motion       to    Partially

Dismiss the Consolidated Complaint (“Motion”). On November 30,
                                            –3–
2012, Porter filed an “Answer” to the Motion [Dkt. No. 51], and

Defendant filed her Reply in support of the Motion on December

10, 2012 [Dkt. No. 52]. Porter filed a Surreply by permission of

the court on December 14, 2012 [Dkt. No. 53].

II.   STANDARD OF REVIEW

      A.    Motions to Dismiss

      Under Rule 12(b)(1), Plaintiff bears the burden of proving

by a preponderance of the evidence that the Court has subject

matter jurisdiction. See Shuler v. United States, 531 F.3d 930,

932 (D.C. Cir. 2008). In reviewing a motion to dismiss for lack

of subject matter jurisdiction, the Court must accept as true

all   of   the    factual    allegations       set   forth    in    the    Complaint;

however,      such     allegations       “will    bear     closer     scrutiny     in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion

for failure to state a claim.” Wilbur v. C.I.A., 273 F. Supp. 2d

119, 122 (D.D.C. 2003) (citations and quotation marks omitted).

The   Court      may   consider    matters       outside     the   pleadings.     See

Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir.

1992).     The    Court    may    also    rest    its    decision     on    its   own

resolution of disputed facts. Id.

      Under Rule 12(b)(6), a plaintiff need only plead “enough

facts to state a claim to relief that is plausible on its face”

and   to   “nudge[     ]   [his   or   her]    claims    across     the    line   from
                                         –4–
conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550

U.S.    544,     570    (2007).      “[O]nce        a     claim      has   been      stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.” Id. at 563.

       B.   Exhaustion of Administrative Remedies

       “Before filing suit, a federal employee who believes that

her agency has discriminated against her in violation of Title

VII must first seek administrative adjudication of her claim.”

Payne v. Salazar, 619 F.3d 56, 58 (D.C. Cir. 2010) (citation

omitted);      see     42   U.S.C.    § 2000e-16(c).            In    addition,          after

receiving notice of the agency’s final action, a plaintiff must

file his or her civil action in the appropriate District Court

within 90 days. 42 U.S.C. § 2000e-16(c); see also Colbert v.

Potter, 471 F.3d 158, 160 (D.C. Cir. 2006).

       These exhaustion requirements are not jurisdictional, but

rather are “similar to a statute of limitations.” Colbert, 471

F.3d   at   167.     Therefore,      they    are    properly         raised    in    a   Rule

12(b)(6) motion to dismiss. See Rosier v. Holder, 833 F. Supp.

2d 1, 5 (D.D.C. 2011) (citing Artis v. Bernanke, 630 F.3d 1031,

1034 n.4 (D.C. Cir. 2011)); see also Gordon v. Nat’l Youth Work

Alliance,      675   F.2d   356   (D.C.      Cir.       1982)   (noting       that   proper

method for raising a defense of limitation is a motion under

Rule 12(b)(6)).
                                            –5–
     Claims under the Rehabilitation Act must be exhausted under

the same procedures as Title VII claims. 29 U.S.C. § 794a(a)(1)

(applying procedures associated with Title VII to Rehabilitation

Act claims). However, unlike Title VII claims, exhaustion of

administrative      remedies    is    a    jurisdictional        requirement        for

Rehabilitation Act claims. See Spinelli v. Goss, 446 F.3d 159,

162 (D.C. Cir. 2006). Thus, “the proper method for challenging

exhaustion    under     the   Rehabilitation       Act    is    a    Rule   12(b)(1)

motion to dismiss for lack of subject matter jurisdiction.” See

Rosier, 833 F. Supp. 2d at 5 (citation omitted).

III. ANALYSIS

     A.    The Difference Between Facts and Claims

     The Secretary’s primary argument is that the majority of

the Complaint must be dismissed because Porter failed to exhaust

his administrative remedies. The state of the Complaint makes it

impossible    for     the   Court    to   fairly   evaluate         the   Secretary’s

Motion at this time.

     Porter represented to this Court at a Status Conference on

September 25, 2012, that he is an attorney. Unfortunately, his

filings thus far make it hard to believe that he is a practicing

lawyer.   His    Complaint     is    63    pages   long    with       148    separate

paragraphs.     His    Opposition     to    Defendant’s        Motion,      which   he



                                          –6–
inaccurately titled an “Answer to the Motion to Dismiss,” is 124

pages long and contains 123 separate paragraphs.

     It    is   apparent    that   Plaintiff       is    not   familiar    with    the

Federal     Rules    of    Civil   Procedure. 2         Federal   Rule    of     Civil

Procedure 8(a) requires a complaint to contain “(1) a short and

plain statement of the grounds for the court’s jurisdiction, . .

.” and “(2) a short and plain statement of the claim showing

that the pleader is entitled to relief[.]” The claim for relief

must “be stated with brevity, conciseness, and clarity” and,

most importantly, give the opposing party “fair notice of the

nature and basis or grounds of the pleader’s claim.” 5 Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 1216 (3d

ed. 2013).

     Porter’s Complaint does not meet these standards. It is

rambling, repetitive, and vague. Above all, it fails to give

notice of the “basis or grounds of the pleader’s claim[s].”

     Porter fails to recognize the important distinction between

facts     and   claims.    In   his    “Answer,”         he    insists    that    each

paragraph       of   his   Complaint    is     a    “count”       that    has     been


2
  Porter also seems unfamiliar with our Local Civil Rules. For
example, Local Civil Rule 7(c) limits memoranda in opposition to
45 pages, unless the party receives prior approval from the
Court. In this case, Plaintiff failed to even ask for, no less
receive, leave to extend the page limit from 45 pages to the 124
pages he submitted.
                               –7–
administratively         exhausted.      However,      many      of    the    paragraphs

consist of mere factual allegations that are insufficient to

constitute     “claims”         for    which    relief     can    be    granted.        For

example,      the       statements       that     David       Dolinsky,           Porter’s

supervisor,      made      to   the    EEO   investigator        do    not    constitute

actionable claims. See Complaint ¶¶ 27, 28, 65, 74, 101, 103,

104. While these paragraphs and others may contain facts which

arguably support Porter’s claims, they are not claims in and of

themselves. The Complaint does not sufficiently indicate which

factual allegations form the “basis or grounds” for Porter’s

claims, as required by Rule 8(a).

     This failing is particularly significant in the employment

discrimination context because the elements of a Title VII claim

vary depending on what type of “unlawful employment practice” is

alleged.   For      both    discrimination       and     retaliation         claims,    the

plaintiff must identify a particular action 3 and allege that the

action occurred either because of “race, color, religion, sex,

national   origin,         age,   or    disability”      or   because        he    or   she

brought or threatened to bring a discrimination claim. Baloch v.

3
  The action must rise to the level of an “adverse employment
action” that affects the “terms, conditions, or privileges of
employment” to constitute discrimination, but only needs to be a
“materially adverse action” that “well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination” to constitute retaliation. Baird v. Gotbaum, 662
F.3d 1246, 1248 (D.C. Cir. 2011) (citations omitted).
                               –8–
Kempthorne,      550         F.3d     1191,      1196,       1198    (D.C.      Cir.     2008)

(citations omitted); Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S.   101,     115      (2002)      (determining        that       “[e]ach    incident     of

discrimination and each retaliatory adverse employment decision

constitutes         a        separate      actionable           ‘unlawful          employment

practice’”).        Thus,      a     plaintiff       must     identify       what    specific

action rises to the level of an unlawful employment practice for

each discrete claim of discrimination or retaliation.

       Porter       does       not      coherently          identify        what    unlawful

employment      practices           form   the       basis    for     his     claims.    Most

paragraphs      begin         by     stating      that       someone        “subjected     the

plaintiff     to”       or    “condoned”       “retaliation[]         and    discrimination

against the Plaintiff.” This assertion is made regarding almost

every incident in the Complaint, including incidents that cannot

possibly be unlawful employment practices, such as Dolinsky’s

comments to the EEO investigator. It is impossible to ascertain

from the Complaint what incidents Porter intends to argue were

discrete unlawful employment practices, and, thus, the “basis or

grounds” for his discrimination and/or retaliation claims are

impossible to ascertain.

       Moreover,         it     is      also     impossible           to     identify      the

“basis or grounds” for Porter’s hostile work environment claim.

All actions that contribute to the creation of a hostile work
                                               –9–
environment      are        part     of     that      single      unlawful       employment

practice,     thus        making   such      claims     “different        in    kind”      from

discrimination and retaliation claims. Morgan, 536 U.S. at 115-

117. However, the actions must be “similar in nature, frequency,

and severity” to be considered “part and parcel” of a coherent

hostile work environment claim. Baird, 662 F.3d at 1251 (quoting

Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944, 951 (8th

Cir.   2011)).       In    addition,        the    plaintiff       must     identify       what

protected     status        caused    his     or    her     employer      to    create      the

abusive working environment. Lee v. Winter, 439 F. Supp. 2d 82,

86 (D.D.C. 2006) (noting that plaintiff needs to “state a causal

connection between his [protected status] and his hostile work

environment claim”).

       The   conclusory        language        that     precedes      the      majority      of

Porter’s allegations states that Porter was “subjected” to “an

objectively      hostile        work        environment.”         However,      the        facts

alleged      include       a   wide       spectrum     of       different      behavior      by

different     people        that     is     clearly       not     “similar     in     nature,

frequency,     and        severity.”        Moreover,       the    Complaint        does    not

identify      what        protected        status     allegedly        caused        Porter’s

supervisors to create a hostile work environment. Thus, it is

impossible     to     identify        the    “basis       or     grounds”      of    Porter’s

hostile work environment claim at this time.
                                             –10–
      B.      Future Proceedings

      Based    on   the   previous    discussion,     it   is    clear    that   the

Complaint has not been drafted in accordance with the Federal

Rules. Thus, the Complaint is dismissed without prejudice.

      In order to identify Plaintiff’s claims, the Court will

permit him – once - to redraft his long, repetitive, and unclear

Complaint. However, that new Complaint must conform to Rule 8

and state allegations on “every material point necessary” with

“brevity,     conciseness,     and   clarity.”    Miller     &    Kane,   supra    §

1216. The Complaint shall be no longer than fifty pages, at the

most, and should have consistent font and spacing throughout.

Plaintiff should also understand that this is an opportunity to

clarify and structure his existing claims, not an opportunity to

add   additional     claims    that    have     not   been       raised   in     this

litigation to date.

      Plaintiff’s     Second   Amended    and    Consolidated       Complaint     is

due May 24, 2013. Any dispositive motion by Defendant is due

June 17, 2013. Any opposition to that motion is due August 5,

2013, and any reply is due August 12, 2013.

      Because the Plaintiff’s Complaint has been dismissed, the

Secretary’s Motion to Partially Dismiss the Complaint is denied

without prejudice as moot.



                                      –11–
III. CONCLUSION

     For    the   foregoing     reasons,        Plaintiff’s     Complaint    is

dismissed   without     prejudice     and    Defendant’s    Motion   is   denied

without    prejudice.    An   Order    shall    accompany     this   Memorandum

Opinion.




                                              /s/________________________
May 14, 2013                                 Gladys Kessler
                                             United States District Judge


Copies to: attorneys on record via ECF

and to

WILLIAM H. PORTER
12710 Thrush Place
Upper Marlboro, Maryland 20772




                                      –12–
