                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
SAKEITHEA RODGERS,            )
                              )
               Plaintiff,     )
                              )
          v.                  ) Civil Action No. 14-208(EGS)
                              )
THOMAS E. PEREZ,              )
Secretary of Labor            )
                              )
               Defendant.     )
______________________________)

                           MEMORANDUM OPINION

       Plaintiff Sakeithea Rodgers (“Ms. Rodgers”) brings this

action against the United States Department of Labor (“DOL”)

alleging discrimination on the basis of sex and retaliation for

prior protected civil rights activity in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and

42 U.S.C. § 1981a. The DOL moves to dismiss Ms. Rodgers’s

complaint for failure to exhaust her administrative remedies.

Upon consideration of the motion, the response and reply

thereto, the applicable law, the entire record, and for the

reasons stated below, the DOL’s motion is DENIED.

  I.     BACKGROUND

         A. Statuary Framework

       The Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. §

1101 et seq., establishes a comprehensive framework for
evaluating employment actions taken against federal employees.

When a serious adverse personnel action, such as a discharge,

demotion, or reduction in pay, is taken against a federal

employee, the employee may appeal the adverse action to the

Merit Systems Protection Board (“MSPB” or “the Board”). 5 U.S.C.

§§ 7512, 7701. The MSPB is an independent adjudicator of federal

employment disputes. An appeal to the MSPB may allege that the

personnel action was impermissible solely as a matter of civil

service law, or the appeal may allege that the personnel action

was taken, in whole or in part, based on discrimination

prohibited by another federal statute, such as Title VII of the

Civil Rights Act. See 5 U.S.C. § 7702. These latter types of

actions are known as “mixed cases” because they allege

violations of both civil service law and civil rights law. See

29 C.F.R. § 1614.302.

     A federal employee who seeks to file a mixed case has two

options to begin the grievance process: (1) file a

discrimination complaint with the agency through the agency’s

Equal Employment Opportunity (“EEO”) Office, or (2) file an

appeal directly with the MSPB. 29 C.F.R. 1614.302(a); 5 C.F.R.

1201.154(a). An employee cannot maintain the same action in both

forums; she must exhaust her administrative remedies in the

forum where her complaint or appeal was first filed. 29 C.F.R.

1614.302(b); Schlottman v. Perez, 739 F.3d 21, 22 (D.C. Cir.

                                2
2014). Where the employee pursues a mixed case complaint within

the agency, she may appeal an adverse agency decision to the

MSPB, or sue directly in federal district court. 5 C.F.R. §

1201.154(b); 29 C.F.R. § 1614.302(d)(1)(i). Where the employee

pursues a mixed case appeal with the MSPB, she may appeal an

adverse decision by filing suit in federal district court. 5

U.S.C. § 7703(b)(2). 1

        B. Factual Background

     On September 25, 2011, Ms. Rodgers was appointed as

Director of Human Resources at the Employment Training

Administration (“ETA”) of the Department of Labor (“DOL”).

Compl., Docket No. 1 at ¶ 9. When the DOL first offered Ms.

Rodgers the position, she was told she would be compensated at

the GS-15, Step 7 pay level. Id. at ¶ 7. Ms. Rodgers informed

the DOL that, based on her prior employment at the Federal

Deposit Insurance Company (“FDIC”), her proper salary level was

GS-15, Step 9. Id. at ¶ 8. The DOL then offered Ms. Rodgers the

position at the GS-15, Step 9 level, and Ms. Rodgers accepted.

Id. at ¶ 9.

     In March of 2012, Ms. Rodgers informed her immediate

supervisor, Lisa Lahrman (“Ms. Lahrman”), that she was being


1 Ordinarily, an employee has the right to appeal an adverse MSPB
decision to the U.S. Court of Appeals for the Federal Circuit. 5
U.S.C. 7703(b)(1). “Mixed cases” are the exception to this
general rule. 5 U.S.C. 7703(b)(2).

                                3
sexually harassed by Jose Conejo (“Mr. Conejo”), one of Ms.

Rodgers’s subordinates. Id. at ¶ 11. According to the complaint,

Ms. Lahrman was unsympathetic and refused to take action. Id. In

April 2012, Ms. Rodgers attempted to report Mr. Conejo to the

DOL’s EEO Officer, but was told she could not file an EEO claim

because he was her subordinate. Id. Ms. Rodgers took no further

action until she was approached by three other women, two of

whom were Mr. Conejo’s subordinates, who reported that he had

been sexually harassing them as well. Id. at ¶ 12. Ms. Rodgers

again went to the EEO Office and reported Mr. Conejo’s conduct.

Id.

      In October 2012, Ms. Rodgers began to prepare Mr. Conejo’s

performance evaluation. Id. at ¶ 13. Ms. Rodgers planned to note

his poor performance and harassing conduct on his evaluation,

but Ms. Lahrman refused to accept the evaluation and generally

dismissed Ms. Rodgers’s concerns. Id. In early November 2012,

Ms. Lahrman called Ms. Rodgers into her office and questioned

her about the starting salary she received upon entering the

DOL. Id. This was the first time anyone had questioned Ms.

Rodgers about her appropriate within-grade step since she

accepted the DOL’s employment offer more than a year earlier.

Id. Following the November 2012 meeting, Ms. Lahrman demanded a

review of Ms. Rodgers within-grade step. Id. at ¶ 14. Ms.

Lahrman retroactively downgraded Ms. Rodgers from a Step 9 to a

                                 4
Step 6. Id. The agency then began to initiate an effort to

recover the purported overpayment. Id.

       C. Procedural History

     Ms. Rodgers filed a timely appeal of the step reduction to

the MSPB in March of 2013. Id. at ¶ 15. Ms. Rodgers initiated

the appeal by submitting an online form. Def.’s Mot. Dismiss,

Docket 19, Ex.1. She did not have counsel at the time she

completed the form.   Pl.’s Mem. Opp. Def.’s Mot. Dismiss.

(“Pl.’s Mem. Opp.”), Docket No. 20 at 1. On the online form, Ms.

Rodgers checked the boxes for “harmful procedural error” and

“whistleblower,” but did not check the box for prohibited

discrimination. Def.’s Mot. Dismiss., Docket No. 19, Ex. 1 at 5.

     On May 2, 2013, Ms. Rodgers, through counsel, filed a

motion to alter the hearing scheduled in her MSPB appeal. Def.’s

Mot. Dismiss, Docket No. 19, Ex. 3. The motion indicated that

Ms. Rodgers sought an extension of time “to allow for a

reasonable period of time for taking discovery and for amending

the claims to include retaliation under Title VII of the Civil

Rights Act, which claim was meant to be included in this appeal

(making it a “mixed case”). . . .”. Id. (parenthetical in

original). The motion further indicated that it was Ms.

Rodgers’s intention to claim that her reduction in pay was

motivated by her prior protected EEO activity – that is, her

reporting Mr. Conejo’s sexual harassment – but had mistakenly

                                 5
checked “whistleblower” rather than “discrimination” believing

that it was the proper box for a retaliation claim. Id.

     Mr. Rodgers never formally amended her MSPB appeal form.

Def.’s Mot. Dismiss, Docket 19 at 3. However, in an initial

telephone conference held before the MSPB Administrative Law

Judge (ALJ) on May 6, 2013, Ms. Rodgers informed the ALJ that

she was bringing a “mixed case” and that she wished to bring her

Title VII claims before the MSPB as well. Pl.’s Mem. Opp.,

Docket No. 20 at 4.

     Ms. Rodgers then sought discovery from the DOL on both the

CSRA and Title VII issues. Pl.’s Mem. Op., Docket 20, Ex. 1 at

2. When the DOL failed to respond, Ms. Rodgers moved to compel.

Id. In her motion to compel, Ms. Rodgers reiterated her

intention to bring a mixed case appeal before the MSPB:

          The result of this conference is that there
          is no question that Ms. Rodgers’s appeal
          presents a mixed case, and, therefore, she
          is entitled to discovery on all issues
          relevant to her appeal – both on the civil
          service law merits and on discrimination and
          retaliation claims.

Id. The ALJ granted in part, and denied in part, Ms. Rodgers’s

motion to compel. Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1-2. 2 In


2 Specifically, the ALJ ordered the DOL to respond to Ms.
Rodgers’s interrogatories and requests for production
immediately. Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1. The ALJ
granted Ms. Rodgers’s request to depose one DOL employee over
the DOL’s objection, but denied her request to depose numerous
others. Id.

                                6
her written decision ruling on the motion to compel, the ALJ

indicated that Ms. Rodgers raised “claims of discrimination and

retaliation for engaging in EEO activity in connection with her

reduction in pay.” Id. In spite of the ALJ’s order, the DOL

again failed to respond to Ms. Rodgers’s discovery requests, and

Ms. Rodgers moved for sanctions. Def.’s Mot. Dismiss, Docket No.

19, Ex 6 at 1-2.

      The ALJ held another telephonic conference on September 9,

2013, at which time Ms. Rodgers withdrew her request for a

hearing and requested that, as a sanction for not responding to

her discovery requests, the record be closed immediately, before

the agency had an opportunity to present additional evidence or

argument. Id. The ALJ granted Ms. Rodgers’s motion for

sanctions, cancelled the hearing, and closed the record, noting

the DOL’s complete failure to engage in discovery:

           At the appellant’s request, the record in
           this matter is now closed, and I will issue
           a decision based on the written record. As
           a sanction for refusing to participate in
           discovery, including failure to comply with
           my order to compel, the agency will not be
           permitted to submit additional evidence and
           argument at this late date after failing to
           respond to the appellant’s discovery
           requests, notices of deposition, and
           attempts to contact [counsel for DOL].
Id.

      The ALJ proceeded to issue a decision on the pleadings

alone. Def.’s Mot. Dismiss, Docket No. 19, Ex. 7. In an Initial


                                 7
Decision dated December 11, 2013, the ALJ reversed the DOL’s

decision to downgrade Ms. Rodgers’s pay. Id. In reaching this

decision, the ALJ noted that the DOL’s “lengthy delay in

correcting what it deemed [a] pay-setting error argues against

the propriety of the agency’s action here.” Id. The ALJ’s Order

required the DOL to cancel its “administrative correction” of

Ms. Rodgers’s pay grade and further ordered the DOL to pay Ms.

Rodgers any back pay due. Id. The ALJ’s Initial Decision was

entirely silent as to Ms. Rodgers’s Title VII claims. Neither

party filed a petition for review of the ALJ’s Initial Decision

and, in accordance with MSPB regulations, the Initial Decision

became the ALJ’s Final Decision on January 15, 2014. See 5

C.F.R. § 1201.113.

     Ms. Rodgers filed a Title VII action in this Court on

February 12, 2014. Compl., Docket No. 1. Ms. Rodgers notes that

by reversing the reduction in her step and pay the MSPB provided

her “virtually all the equitable relief” to which she would be

entitled had she succeeded on her Title VII claims before the

Board. Id. However, she now seeks compensatory damages for the

“career damage done to her, as well as for the professional and

personal embarrassment and humiliation she was made to suffer”

as a result of the DOL’s Title VII violations. Id. As relief,

she requests a declaratory judgment finding that she was the

victim of intentional sex discrimination and retaliation in

                                8
violation of Title VII, compensatory damages in the amount

$300,000.00, attorney’s fees and costs, and injunctive relief.

Id.

      The DOL moved to dismiss on January 23, 2015, arguing that

Ms. Rogers failed to administratively exhaust her Title VII

claims before the MSPB. Def.’s Mot. Dismiss, Docket No 19 at 1.

The DOL argues that (1) Ms. Rodgers failed to raise her

discrimination and retaliation claims before the MPSB; (2) even

if Ms. Rodgers raised Title VII claims before the MSPB, she

subsequently abandoned them; and (3) pursuant to the Supreme

Court’s decision in Kloeckner v. Solis, 133 S.Ct. 596 (2012),

the ALJ’s silence on the Title VII issue precludes Ms. Rodgers

from seeking review in this Court. Id.

  II.   STANDARD OF REVIEW

      Defendant moves to dismiss Ms. Rodgers’s complaint under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def.’s

Mot. Dismiss, Docket 20 at 1. In this district, motions to

dismiss for failure to exhaust administrative remedies under

Title VII are generally resolved as motions to dismiss for

failure to state a claim under Rule 12(b)(6). Augustus v. Locke,

699 F. Supp. 2d 65, 69 n.3 (D.D.C. 2010). Rule 12(b)(1) is

inapplicable because failure to exhaust administrative remedies

is not a jurisdictional bar to bringing suit under Title VII.

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997);

                                 9
Marcelus v. Corr. Corp. of Am., 540 F. Supp. 2d 231, 234-35

(D.D.C. 2008). In this case, however, the Rule 12(b)(6) standard

is inappropriate because the Court must look outside the

pleadings to resolve the exhaustion issue. See Fed. R. Civ. P.

12(d) (“If, on a motion under Rule 12(b)(6) . . . , matters

outside the pleadings are presented and not excluded by the

court, the motion must be treated as one for summary judgment

under Rule 56.”). Accordingly, the Court will construe the

defendant’s motion as a motion for summary judgment.

     Summary judgment is appropriate when the moving party has

shown that there are no genuine issues of material fact and that

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.

Cir. 2002). A material fact is one that is capable of affecting

the outcome of the litigation. Anderson v. Liberty Lobby, 477

U.S. 242, 248 (1986). A genuine issue is one where the “evidence

is such that a reasonable jury could return a verdict for the

non-moving party.” Id. A court considering a motion for summary

judgment must draw all “justifiable inferences” from the

evidence in favor of the nonmovant. Id. at 255. To survive a

motion for summary judgment, however, the nonmovant “must do

more than simply show that there is some metaphysical doubt as

to the material facts”; instead, the nonmoving party must come

                               10
forward with “specific facts showing that there is a genuine

issue for trial.” Matsushita Elec. Indus. Co. Ltd., v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed. R. Civ. P.

56(e)).

  III. DISCUSSION

          A. Ms. Rodgers Timely Raised her Title VII Claims Before
             the MSPB

     The DOL argues that Ms. Rodgers never properly brought a

mixed case before the MSPB: her original appeal form did not

indicate she was alleging a Title VII violation and Ms. Rodgers

never formally amended her appeal form. Def.’s Mot. Dismiss,

Docket No. 19 at 11. Ms. Rodgers argues that she successfully

brought a mixed case when she raised the Title VII claim in the

May 2013 telephonic conference before the ALJ. Pl.’s Mem. Opp.,

Docket No. 2 at 3. Further, Ms. Rodgers argues that the ALJ

recognized the appeal as a mixed case when she granted her

discovery on both the civil service law and civil rights law

issues. Id. at 4-5.

     The Board’s regulations provide that “[a]n appellant may

raise a claim or defense not included in the appeal at any time

before the end of the conference(s) held to define the issues in

the case.” 5 C.F.R. § 1201.24(b). Ms. Rodgers informed the ALJ

she was bringing a mixed case during the May 6, 2013 telephone

conference. Pl.’s Mem. Opp., Docket 20 at 4. Ms. Rodger’s motion


                                  11
to compel discovery before the ALJ summarizes the telephone

conference as follows:

          On May 6, 2013, Administrative Judge Clement
          held a telephonic conference with counsel
          for [Ms. Rodgers] and the Agency wherein it
          was clarified that this is a mixed case,
          addressing both the merits of the employment
          actions taken against Ms. Rodgers as well as
          issues of unlawful employment discrimination
          and retaliation.

Pl.’s Mem. Opp., Docket 20, Ex. 1 at 2. Indeed, in ruling on the

Motion to Compel, the ALJ granted Ms. Rodgers discovery on both

the civil service law and civil rights law issues, indicating

that Ms. Rodgers was “raising claims of discrimination and

retaliation for engaging in EEO activity in connection with the

reduction in her pay.” Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1.

By raising her Title VII claims in the May 6, 2013 conference to

define the issues, Ms. Rodgers timely brought a mixed case

appeal before the MSPB. Accordingly, the DOL’s first argument

must fail.

       B. Ms. Rodgers Did Not Abandon Her Title VII Claims

     Next, the DOL argues that even if Ms. Rodgers timely raised

a mixed case appeal, she abandoned her Title VII claims when she

(1) failed to formally amend her appeal; (2) filed a pre-hearing

submission characterizing the issue of the case as a civil

service law issue, rather than a civil rights issue; (3) closed

the record before submitting any evidence of discrimination; and


                               12
(4) failed to file a petition for review of the ALJ’s Initial

Decision. Def.’s Mot. Dismiss., Docket No. 19 at 11. Ms. Rodgers

counters that she never intended to abandon her Title VII

claims, and that any failure to pursue these claims on the

merits was solely the fault of the DOL. Pl.’s Mem. Opp., Docket

No. 20 at 3, 8.

     When an employee “abandons” her claims during the

administrative proceedings, she has not exhausted those claims

for purposes of seeking review in federal court. Bush v.

Engleman, 266 F. Supp. 2d 97, 101 (D.D.C. 2003) (citing Greenlaw

v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995)). An employee

abandons her claim where she withdraws from the administrative

proceeding prior to its conclusion or expressly disclaims any

intention of pursuing the claims further. Bush, 266 F. Supp. 2d

at 101; Thurman v. Merit Sys. Prot. Bd., 566 F.App’x 957, 960

(Fed. Cir. 2014) (per curium); Meehan v. U.S. Postal Serv., 718

F.2d 1069, 1073-74 (Fed. Cir. 1983). Courts may also consider

claims abandoned where the employee has intentionally obstructed

the administrative process. See Vinieratos v. Dep’t of Air

Force, 939 F.2d 762, 770 (9th Cir. 1991).

     The DOL points to four separate occasions where it argues

Ms. Rodgers abandoned her Title VII claims. Each will be

discussed in turn.




                               13
          1. Ms. Rodgers’s Failure to Formally Amend her Appeal
             Form

     First, the DOL argues that Ms. Rodgers abandoned her claim

when she failed to formally amend her MSPB form. Def.’s Mot.

Dismiss, Docket No. 19 at 11. As discussed above, the

regulations provide that “[a]n appellant may raise a claim or

defense not included in the appeal at any time before the end of

the conference(s) held to define the issues in the case.” 5

C.F.R. § 1201.24(b). While formal amendment of the appeal never

occurred, Ms. Rodgers raised the Title VII issues in a telephone

conference before the ALJ on May 6, 2013. Pl.’s Mem. Opp.,

Docket No. 20 at 4. Accordingly, Ms. Rodgers did not abandon her

Title VII claims through her failure to formally amend her

appeal.

          2. Ms. Rodgers’s Characterization of the Issues in her
             Pre-Hearing Submission

     Second, the DOL argues that Ms. Rodgers abandoned her Title

VII claims through the characterization of the “issue” of the

case in her pre-hearing submission before the MSPB. Def.’s Mot.

Dismiss, Docket 19 at 11. Specifically, in the submission, Ms.

Rodgers described the “issue” of the MSPB appeal as whether she

received the proper in-grade step upon entry to the DOL. Def.’s

Mot. Dismiss, Docket 19, Ex. 4 at 2. The DOL argues that by

framing the issue as a question of civil service law, rather

than a question of both civil service and civil rights law, Ms.

                               14
Rodgers abandoned her Title VII claims. Def.’s Mot. Dismiss,

Docket 19 at 11.

     To bring a mixed-case appeal before the MSPB, the

regulations require that the employee allege the appealable

employment action took place, “in whole or in part,” based on

prohibited discrimination. 29 C.F.R. § 1614.302(a)(2). Ms.

Rodger’s pre-hearing submission to the ALJ includes allegations

that she “had reported that both she and other female employees

in her unit had suffered sexual harassment at the hands of Jose

Conjeo.” Def.’s Mot. Dismiss, Docket 19, Ex. 4 at 10. She

further alleges that soon after she reported this harassment to

Ms. Lahrman, Ms. Lahrman initiated a review of her salary. Id.

Moreover, the pre-hearing submission twice characterizes Ms.

Rodger’s MSPB Appeal as a “mixed case.” Id. at 13, 15. Far from

evidencing abandonment of her Title VII claims, by alleging

instances of discrimination and retaliation in connection with

her reduction in pay, Ms. Rodger’s pre-hearing submission is

wholly consistent with a mixed case appeal. Accordingly, Ms.

Rodgers did not abandon her Title VII claims through her pre-

hearing submission.

          3. Ms. Rodgers Closed the Administrative Record Prior
             to Submitting Evidence of Discrimination

     Third, the DOL argues that Ms. Rodgers abandoned her Title

VII claim by closing the administrative record prior to


                               15
submitting any evidence of discrimination or retaliation.

Def.’s Mot. Dismiss, Docket No. 19 at 13. According to the DOL,

when the ALJ prevented the DOL from offering any additional

evidence as a sanction for their misconduct in discovery,

nothing prevented Ms. Rodgers from submitting her own affidavit

setting forth the allegedly discriminatory and retaliatory acts.

Id. While Ms. Rodgers does not address her failure to submit an

affidavit specifically, she argues that she was “stripped” of

her ability to have her Title VII claims heard on the merits “by

DOL’s unconscionable refusal to provide and allow discovery,

even when ordered to do so by the MSPB Administrative Judge.”

Pl.’s Mem. Opp., Docket No. 20 at 8. In support of this

argument, Ms. Rodgers cites to the ALJ’s decision granting her

counsel full attorney’s fees:

          The agency argues that any fees charged in
          connection with [Ms. Rodgers’s] EEO and
          retaliation claims should be eliminated
          because [Ms. Rodgers] did not prevail on
          these claims in her appeal. Notably, the
          agency avoids mention of the reason [Ms.
          Rodgers] could not prevail on her claim of
          discrimination and retaliation: she was
          prevented from developing her claims by the
          agency’s complete failure to participate in
          the discovery process despite both her
          counsel’s and my own interventions in his
          regard. Because of the lack of discovery in
          this matter, the appellant was forced to
          withdraw her request for a hearing and
          instead seek a decision on the written
          record . . . I find that her inability to
          develop these [Title VII] claims was solely
          the fault of the agency, and I do not find

                                16
          it reasonable to reduce her claim for fees
          in connection with these issues in these
          circumstances . . . it was evident from her
          initial pleadings that she fully intended to
          develop these claims had the agency provided
          her with the discovery materials she needed.

Pl.’s Mem. Opp., Docket 20, Ex. 3 at 6. The DOL counters that

the ALJ’s statements are mere dicta and do not establish a basis

for allowing Ms. Rodgers to bring her Title VII claims in this

Court. Def.’s Mot. Dismiss, Docket No. 19 at 2.

     Dicta or not, Ms. Rodgers was prevented from presenting

evidence on her Title VII claims before the ALJ due to the

agency’s “complete failure to participate in the discovery

process.” Pl.’s Mem. Opp., Docket 20 Ex. 3 at 6. Ms. Rodgers

never expressly disclaimed her intention of pursuing her Title

VII claims further, nor did she engage in misconduct with the

intention of obstructing the administrative process. It was the

DOL, and not Ms. Rodgers, who failed to meaningfully participate

in the administrative proceedings. Accordingly, Ms. Rodgers did

not abandon her Title VII claims by closing the administrative

record.

          4. Ms. Rodgers Failed to Object to the ALJ’s Initial
             Decision

     Finally, the DOL argues that Ms. Rodgers abandoned her

Title VII claims when she failed to object to the ALJ’s Initial

Decision. Def.’s Mot. Dismiss, Docket No. 19 at 15. According to

the DOL, Ms. Rodgers should have filed a petition for review of

                               17
the ALJ’s decision, or alternatively, should have alerted the

ALJ that she overlooked the Title VII claims. Id. Ms. Rodgers

argues that after the DOL refused to provide her with discovery,

any attempt to appeal the ALJ’s decision would have been futile.

Pl.’s Mem. Opp., Docket No. 20 at 7.

     Neither the statute nor accompanying regulations require

the employee to file a petition for review of the ALJ’s Initial

Decision prior to proceeding in federal court. The DOL seeks to

read in a requirement that is simply not there. Once again, the

DOL fails to demonstrate that Ms. Rodgers expressly disclaimed

her intention of pursuing her Title VII claims further or

engaged in misconduct with intent to obstruct the administrative

proceedings. Accordingly, Ms. Rodgers did not abandon her Title

VII claims at any point during the administrative proceedings.

       C. The DOL’s Reading of Kloeckner v. Solis Is
          Inconsistent with the CSRA

     The DOL argues that, according to the Supreme Court’s

decision in Kloeckner v. Solis, 133 S.Ct. 596 (2012), the ALJ’s

silence on the Title VII claims precludes Ms. Rodgers from

seeking review of those claims in federal district court. Def.’s

Mot. Dismiss, Docket No. 19 at 9-10. 3 Ms. Rodgers argues that the


3
 The DOL argues Ms. Rodgers has no recourse to address her Title
VII claims in any forum because she is also precluded from
having the claims heard by the DOL’s EEO office due to her
initial election to proceed before the MSPB. Def.’s Mot.
Dismiss, Docket No. 19 at 16, 17 (“there is no procedural avenue

                                18
DOL reads Kloeckner out of context and that the case did not

address the peculiar facts presented here. Pl.’s Mem. Opp.,

Docket No. 20 at 6.

     In Kloeckner, the Supreme Court held that an employee who

brings a mixed case appeal before the MSPB should seek review of

an adverse MSPB decision in federal district court regardless of

whether the MSPB decided the case on the merits or dismissed the

case on procedural grounds. Kloeckner, 133 S.Ct. at 607.

Kloeckner resolved a circuit split: prior to the decision the

Eighth and Federal Circuits had held that jurisdiction in

federal district courts, as opposed to the Federal Circuit, was

only proper where the MSPB had decided the mixed case appeal on

the merits, and not where the MSPB had dismissed the case on

procedural grounds. See Kloeckner v. Solis, 639 F.3d 834 (8th

Cir. 2011) (opinion below); Ballentine v. Merit Sys. Prot. Bd.,

738 F.2d 1244 (Fed. Cir. 1984).

     In Kloeckner, consistent with precedent from the Eighth and

Federal Circuits, the government argued that the phrase

“judicially reviewable action,” as it appears in the CSRA,

referred only to MSPB decisions on the merits. Kloeckner, 133

S.Ct. at 606. In rejecting this argument, the Supreme Court held




for pursuing [the Title VII] claims now”). See also 29 C.F.R.
1614.302(b).


                                  19
that “[a]ll the phrase signifies is that the Board should

dispose of the issue in some way, whether by actually

adjudicating it or by holding that it was no properly raised.”

Id. The DOL argues that the Supreme Court’s statement should be

understood as a limiting principle in that while the MSPB may

hold on procedural or substantive grounds, the MSPB must

actually hold on the Title VII issue. Def.’s Mot. Dismiss,

Docket 19 at 9-10. Due to the ALJ’s silence on the Title VII

issue in this case, the DOL argues that Ms. Rogers may not

proceed to court. Id.

     This argument fails. First, in Kloeckner, the Court was not

confronted with the peculiar facts of this case where, through

no fault of the employee, the ALJ did not rule on all issues

raised. Second, the statute does not require the MSPB to issue a

“judicially reviewable action” before the employee may proceed

in federal court. Indeed, the CSRA contains a “languishing

provision” which allows employees to proceed to court in cases

where an appeal has been pending for 120 days and the Board has

yet to issue a decision:

          [I]f any time after . . . (B) the 120th day
          following the filing of an appeal with the
          Board under subsection (a)(1) of this
          section, there is no judicially reviewable
          action . . . an employee shall be entitled
          to file a civil action to the same extent
          and in the same manner as provided in
          section 7171(c) of the Civil Rights Act of
          1964.

                               20
5 U.S.C. § 7702(e)(1); see also Butler v. West, 164 F.3d 634, 638

(D.C. Cir. 2008). 4 Pursuant to the languishing provision, Title

VII cases may proceed to federal district court without the

agency ever issuing a decision. See e.g., Ikossi v. Dep’t of

Navy, 526 F.3d 1037, 1041 (D.C. Cir. 2008). Put another way, in

the Title VII context, there is no requirement that the district

court actually review the decision of the administrative entity.

Indeed, given that the district court reviews Title VII claims de

novo, there is no need for the MSPB to issue a written decision

prior to this Court hearing the claims. See 5 U.S.C. § 7703(c);

Robinson v. Duncan, 775 F. Supp. 2d 143, 157 (D.D.C. 2011). The

DOL’s reading of Kloeckner is unnecessarily restrictive and

inconsistent with the CSRA read as a whole. Accordingly, the

ALJ’s silence on the Title VII claims does not bar Ms. Rodgers

from proceeding in federal court.

       D. The Equities Weigh in Favor of Finding Exhaustion

     In addition to the legal arguments above, both sides raise

policy arguments in favor of their position. Ms. Rodgers argues

that the Court should not allow the DOL to benefit from their

misdeeds before the MSPB. Pl.’s Mem. Opp., Docket 20 at 8. The



4
 As the Court described in Kloeckner, the provision is “designed
to save employees from being held in perpetual uncertainty by
Board inaction.” Kloecker, 133 S.Ct. at 606(internal quotation
marks omitted).

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DOL argues that allowing Ms. Rodgers to proceed here would be

sanctioning the DOL for conduct that the ALJ already sanctioned

below. Def.’s Rep. Pl.’s Mem. Opp., Docket No. 22 at 6.

     “Exhaustion under Title VII, like other procedural devices,

should never be allowed to become so formidable a demand that it

obscures the clear congressional purpose of ‘rooting out . . .

every vestige of employment discrimination within the federal

government.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985)

(internal citations omitted). Further, a plaintiff may be

“excused from exhaustion when there are equitable reasons for

doing so.” Broom v. Caldera, 129 F. Supp. 2d 25, 29 (2001). One

such “equitable reason” may be bad faith or misconduct on the

part of the agency. Berry v. Abdnor, 1989 WL 46761, at *2

(D.D.C. April 20, 1989). Finally, a plaintiff should not be

deprived of judicial review based on failure to follow

procedural technicalities of the exhaustion requirement, so long

as the defendant has been “put on notice” of plaintiff’s claims.

President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980).

     The equities weigh in favor of finding exhaustion here. The

DOL’s own misconduct in discovery before the administrative

tribunal prevented Ms. Rodgers from having her Title VII claim

adjudicated on the merits. The DOL will not be allowed to

benefit from this misconduct now. While administrative

exhaustion may, in many circumstances, serve the interests of

                               22
judicial economy, the interests of justice are not served where

the DOL fails to participate in the administrative proceedings

only to later argue that the plaintiff may not proceed in

federal court. Title VII cannot serve its purposes when the

plaintiff is prevented from taking discovery on her claims.

Accordingly, Ms. Rodgers will be permitted to proceed in this

Court.

  IV.     CONCLUSION

     For the reasons stated above, the DOL’s motion to dismiss

Ms. Rodgers complaint, construed as a motion for summary

judgment, is DENIED. An appropriate order accompanies this

Memorandum Opinion.

Signed:     Emmet G. Sullivan
            United States District Judge
            September 29, 2015




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