Ward v. Mayorkas

majority opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

KATHERINE WARD, )

)

Plaintiff, )

)

v. ) Civil Action No. 23-813 (RBW)

)

MARKWAYNE MULLIN, 1 in his official )

capacity as the Secretary of the )

Department of Homeland Security, )

)

Defendant. )

)

MEMORANDUM OPINION

The plaintiff, Katherine Ward, brings this civil action against the defendant, Markwayne

Mullin, in his official capacity as the Secretary of the Department of Homeland Security

(“DHS”), alleging “unlawful employment discrimination on the basis of sex, disability, reprisal,

hostile work environment[,] and interference with statutorily protected rights in violation of Title

VII of the Civil Rights Act of 1964,” 42 U.S.C. §§ 2000e–2000e-16(a), and § 501 of the

Rehabilitation Act (“the Act”), 29 U.S.C. § 791. See First Amended Complaint (“Am. Compl.”)

at 1, ECF No. 22. Currently pending before the Court is the defendant’s motion to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See generally Defendant’s

Motion to Dismiss and Memorandum in Support Thereof (“Def.’s Mem.”), ECF No. 26. Upon

careful consideration of the parties’ submissions, 2 the Court concludes for the following reasons

Markwayne Mullin is the current United States Secretary of Homeland Security and is therefore substituted for Alejandro Mayorkas and Kristi L. Noem as the proper party defendant pursuant to Federal Rule of Civil Procedure 25(d).

In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Complaint, (“Original Compl.” or “Compl.”), ECF No. 1; (2) Compl., Exhibit (“Ex.”) 20 (“Records Reflecting Pl.’s Medical Ailments”), ECF No. 1-1; (3) the Transcript of Motion Hearing Before the Honorable Reggie B. Walton

(Continued . . .)

that it must grant the defendant’s motion to dismiss because the Court lacks subject-matter

jurisdiction.

I. BACKGROUND

A. Statutory Background

The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability

in the United States . . . shall, solely by reason of her or his disability . . . be subjected to

discrimination” by a federal agency. 29 U.S.C. §§ 794(a)–(b); see Zano v. McDonough, No. 22-2748 (RBW), 2024 WL 2699976, at *11 (D.D.C. May 24, 2024) (Walton, J.). The Americans

with Disabilities Act has been incorporated into the Rehabilitation Act, and also prohibits federal

agencies from “discriminat[ing] against a qualified individual on the basis of disability in regard

to job application procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of employment.” 42

U.S.C. § 12112(a); see also 29 U.S.C. § 791(f); Qashu v. Rubio, 172 F.4th 28, 33 (D.C. Cir.

2026) (same).

If a federal employee believes that his or her rights under the Rehabilitation Act are not

being enforced, the employee may sue to enforce them. See Ali v. Regan, 111 F.4th 1264, 1268

(D.C. Cir. 2024). “To prevail, an employee must allege and prove that: (1) [s]he is disabled, (2)

h[er] employer had notice of the disability, and (3) the employer denied h[er] request for a

(continued . . .)

(Jan. 18, 2024) (“Jan. 2024 Mot. Hr’g Tr.”), ECF No. 14; (4) the Transcript of Motion Hearing Before the Honorable Reggie B. Walton (Sept. 13, 2024) (“Sept. 2024 Mot. Hr’g Tr.”), ECF No. 24; (5) Def.’s Mem., Ex. A (“Pl.’s MSPB Appeal Form”), ECF No. 26-1; (6) Def.’s Mem., Ex. B (“Merit Systems Protection Board (“MSPB”) Initial Decision”), ECF No. 26-2; (7) Def.’s Mem., Ex. C (“Pl.’s Formal Equal Employment Opportunity (“EEO”) Complaint”), ECF No. 26-3; (8) Def.’s Mem., Ex. D (“Equal Employment Opportunity Commission (“EEOC”) Decision on Request for Reconsideration”), ECF No. 26-4; (9) Def.’s Mem., Ex. E (“MSPB Proof of Final Decision”), ECF No. 26-5; (10) Def.’s Mem., Ex. H (“EEO Complaint Confirmation”), ECF No. 26-8; (11) the Plaintiff’s Memorandum of Law in Opposition to the Defendant’s Motion to Dismiss (“Pl.’s Opp’n”), ECF No. 27; and (12) the Reply in Further Support of Defendant’s Motion to Dismiss (“Def.’s Reply”), ECF No. 29.

reasonable accommodation.” Id. at 1268–69. A reasonable accommodation includes “job

restructuring, part-time or modified work schedules, reassignment to a vacant position,

acquisition or modification of equipment or devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of qualified readers or interpreters, and

other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9). Equal

Employment Opportunity Commission regulations further specify that “reasonable

accommodations” include “[m]odifications or adjustments to the work environment, or to the

manner or circumstances under which the position held or desired is customarily performed, that

enable an individual with a disability who is qualified to perform the essential functions of that

position,” as well as “[m]odifications or adjustments that enable . . . [an] employee with a

disability to enjoy equal benefits and privileges of employment as are enjoyed by [the

employer’s] other similarly situated employees without disabilities.” 29 C.F.R.

§§ 1630.2(o)(1)(ii)–(iii).

The employee bears the “initial burden of showing that a reasonable accommodation is

possible.” Ali, 111 F.4th at 1269. “Once that showing is made, an employer may still avoid

liability by showing that the proposed accommodation would impose an ‘undue hardship’ on the

employer’s operations.” Id. (citing 42 U.S.C. §§ 12111(10)(A), 12112(b)(5)(A)). An employer

fully satisfies its statutory obligation by offering an accommodation that is reasonable, even if it

is not the one preferred by the employee. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C.

Cir. 1998).

Aggrieved federal employees who believe that their employing agency engaged in

conduct prohibited by the Act must “exhaust administrative remedies before they can [sue] to

enforce [its] protections.” Doak v. Johnson, 798 F.3d 1096, 1099 (D.C. Cir. 2015) (citing

Barkley v. U.S. Marshals Serv., 766 F.3d 25, 33 (D.C. Cir. 2014)). This requirement necessitates

that the individual “submit[] a claim to the employing agency itself[,]” id. at 1099 (citing Kizas

v. Webster, 707 F.2d 524, 543–44 (D.C. Cir. 1983)), “within 45 days of the date of the [alleged

discriminatory action,]” id. (citing 29 C.F.R. § 1614.105(a)(1)) (internal quotations omitted).

The requirement is essential because “[t]he Act limits judicial review to employees aggrieved by

the final disposition of their administrative complaint.” Spinelli v. Goss, 446 F.3d 159, 162

(D.C. Cir. 2006) (citing 29 U.S.C. 794a(a)(1)) (internal quotations omitted); Barkley, 766 F.3d at

34 (“[T]he requirement that the aggrieved employee first seek an administrative

resolution . . . commands strict adherence.”).

Additionally, federal employees bring a “mixed case” when they “assert[]

claims . . . [that] arise[] under a federal employment discrimination law . . . and . . . relate[] to or

stem[] from an action . . . within the jurisdiction of the Merit Systems Protection Board[,]”

Niskey v. Kelly, 859 F.3d 1, 6–7 (D.C. Cir. 2017), a “quasi-judicial federal

agency . . . established . . . to review civil service decisions[,]” Jones v. U.S. Dep’t of Just., 111

F. Supp. 3d 25, 31 (D.D.C. 2015) (citing 5 U.S.C. § 7701). And, in such a case “the employee

can forgo the internal agency exhaustion process and take h[er] claim directly to the Board.”

Niskey, 859 F.3d at 7 (citing 5 U.S.C. § 7702) (citations omitted). “Alternatively, the employee

may file a mixed case complaint with the agency and then appeal to the Board” if the agency

issues an adverse decision or fails to timely act on the complaint. Id. (citing 5 U.S.C. § 7702)

(citations omitted). In either case, “the agency bears the burden of [substantiating its actions] by

a preponderance of the evidence,” U.S. Postal Serv. v. Gregory, 534 U.S. 1, 5 (2001), and “the

[MSPB] has independent authority to consider whether [the agency action was] appropriate for

the specific misconduct involved,” Local 2578, Am. Fed’n of Gov’t Emps. v. Gen. Serv. Admin.,

711 F.2d 261, 265 (D.C. Cir. 1983) (citation omitted). “If the [MSPB] upholds the agency

action, the employee may [appeal the decision to the] EEOC or [ ] seek judicial review.” Niskey,

859 F.3d at 7 (citing §§ 7702, 7703(b)) (citations omitted).

B. Factual Background

Unless otherwise specified, the following factual allegations are derived from the

plaintiff’s Amended Complaint. And, although as the plaintiff admits, the “dates [of certain

events] seem to be unconnected,” Am. Compl. ¶ 71, the Court must “construe the complaint

liberally” in resolving whether it can survive the defendant’s motion to dismiss, see Am. Nat’l

Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011).

The plaintiff “served in the United States Navy [between 1994 and 2014,]”

Am. Compl. ¶ 30, and was diagnosed with “adjustment disorder with anxiety” in 2014, “based

on a traumatic sexual assault” she experienced during her military service, id. ¶ 31. 3 The

plaintiff contends that her “mental health condition was more prominent when she was

confronted by men[,]” including when “a male [would] declare [that] he was the boss and there

would be no questions” tolerated. Id. ¶ 68.

In November 2014, the plaintiff “began working [at the DHS] as a Security Specialist [at

general schedule] [“(]GS[)”]11/02.” Id. ¶ 32. Thereafter, she received two promotions—the first

to the level of “Security Specialist GS 12/01” in November 2015 and the second to the level of

“Security Specialist GS 13/01” in November 2016. Id. In those roles, the plaintiff “was

responsible for processing Requests for Access (‘RFA’), conducting indoctrinations, and

requesting indoctrination assists” for several components of the DHS. Id. ¶ 33. These duties

The plaintiff does not specify when in 2014 she received the adjustment disorder with anxiety diagnosis. See Am. Compl. ¶ 31.

“required [that the plaintiff] maintain a sensitive compartmented information (‘SCI’) clearance.”

Id.

“In October 2016, [the plaintiff] requested a reasonable accommodation [to] work[] in a

location other than the . . . [sensitive compartmented information facility (“]SCIF[”).]” Id. ¶ 34.

The plaintiff alleges that her “request was approved, but not without controversy.” Id. At a time

unspecified 4 by the plaintiff, she alleges that her “then treating [p]sychiatric [m]ental [h]ealth

[n]urse [p]ractitioner . . . provided a letter that detailed several accommodations [that the plaintiff

should receive], [which] include[d] flexible leave for doctor’s appointments, . . . breaks to utilize

stress management techniques, . . . clear written instructions for work assignments[,] [ ]

sufficient time to complete [tasks] . . . , and removal from working in the SCIF area.” Id. ¶ 35.

According to the plaintiff, “her then first line supervisor, Elvin Pearson [(‘Mr. Pearson’)],

[ ] caused her to experience an exacerbation of the symptoms associated with her mental health

diagnosis.” Id. Specifically, “[i]n November 2016, Mr. Pearson sent [the plaintiff] an email

stating that [she] was being removed from the [RFA processing] team and . . . would be assigned

certain office task[s,] which would be discussed [ ] once Mr. Pearson got to a certain status[ 5] on

[her] reasonable accommodations requests.” Id. ¶ 36. “The email further stated that the RFA

program would be immediately consolidated under three of [the plaintiff]’s coworkers

to . . . eliminate the backlog [of RFA requests] and [complete] the RFA approved indoctrinations

[within] . . . five business days.” Id. “Based on that email, [the plaintiff] was concerned that Mr.

Pearson was attempting to limit her duties based on her request for accommodation[s].” Id. ¶ 37.

It is unclear from the Amended Complaint whether these additional requests for accommodations were also made in October 2016 or were made at another time.

It is not clear what the plaintiff means when she alleges that Mr. Pearson would assign her office tasks once he “got to a certain status on [her] reasonable accommodations requests.” Id. ¶ 36.

And, “[w]hen this was brought to Mr. Pearson’s attention, [he] called [the plaintiff]

unprofessional [and] stat[ed] that she was failing to follow directions which amounted to

insubordination.” Id. This interaction prompted the plaintiff to file “an informal complaint of

discrimination” in 2016, which she later withdrew. Id. ¶ 38.

Then, “[i]n January 2017, Mr. Pearson sent an email to [the plaintiff]’s first line

supervisor,” along with copies to two of her colleagues, stating that Mr. Pearson “would need to

discuss” with “the incoming [d]irector of [s]ecurity[,]” Calvin Martin (“Mr. Martin”), “how to

set [the plaintiff] up with her own security division [so that] the division [would not] look[]

inept” Id. ¶ 39. The plaintiff also alleges that Mr. Pearson stated in this email that the plaintiff

“had no intent to work the [special security officer (‘]SSO[)’] box.” 6 Id. The plaintiff alleges

that, although she was not aware of this email at the time, she “noticed a shift in [Mr. Martin’s]

treatment of her” and “Mr. Martin [told the plaintiff that] he became aware of [the plaintiff]’s

reasonable accommodation [request] from [ ] 2016.” Id. ¶ 41.

About one month later, on February 1, 2017, Mr. Martin instructed the plaintiff “to cease

working on RFAs.” Id. ¶ 42. When the plaintiff asked why this responsibility was being

terminated, “she was told that [Mr. Martin] was the director and he made the decisions.” Id. The

plaintiff alleges that she “experience[ed] an increase of anxiety related to her mental health

disorder” as a result of that comment. Id. The plaintiff then “contacted upper management

within the department” about the reduction of her duties and expressed that she was experiencing

“increased anxiety” from “the rapid change [of her duties].” Id. ¶ 43. On February 28, 2017, the

plaintiff alleges that Julius Henderson (“Mr. Henderson”), “a coworker who had stepped into the

According to the plaintiff, the SSO box “was an email provided [to] federal agencies to request clearances.” Am. Compl. ¶ 39.

role of [solely the plaintiff’s] first line supervisor[,]” “told [the plaintiff], via email, not to contact

upper management again.” Id. ¶ 44.

Then, on “March 1, 2017, [the plaintiff] was notified that she was not allowed to handle

an[y] classified information, which prevented her from [conducting] most of the duties for her

position.” Id. ¶ 45. That same day, the plaintiff “initiated informal counseling through the

[Equal Employment Opportunity (‘]EEO[‘)] office.” Id. ¶ 46. Two days later, the plaintiff

“advised Mr. Henderson [that] she would not be in [the office] that day because she was

distraught over the discrimination she was experiencing at work.” Id. ¶ 47. “In that [same]

email, [the plaintiff also] mentioned that she had [ ] suicidal thoughts and was in contact with her

treating doctors.” Id.

The plaintiff alleges that “[o]n March 6, 2017, Mr. Henderson received a memo [stating]

that [the plaintiff’s] security clearance was suspended [pending] the conclusion of an internal

investigation.” Id. ¶ 48. According to the plaintiff, the memorandum did “not provide any

information as to why [the plaintiff] was being investigated.” Id. However, the next day, Mr.

Henderson sent the plaintiff a memorandum “advising her that she was the subject of an Office

of Professional Responsibility [(“OPR”)] investigation regarding allegations of breach of

integrity and unprofessional conduct” but it failed to specify the alleged behavior that led to the

allegations. Id. ¶ 49.

Further, “[b]etween March 7, 2017 and March 10, 2017, [the plaintiff] requested [a]

reasonable accommodation” “to work in a different location[,]” and she included “a note from

her treating physician” along with her request. 7 Id. ¶ 50. The plaintiff also “requested leave”

“[b]etween March 7, 2017, and March 21, 2017, . . . but [the request] was denied.” Id. ¶ 51.

The Amended Complaint does not explicitly state whether this request was granted. See generally Am. Compl.

Thereafter, the plaintiff alleges that she experienced several more adverse employment actions,

including work reassignment, being escorted from the agency, suspension, being prohibited from

entering the agency, and denial of a reasonable accommodation request. See id. ¶¶ 52–57.

On May 10, 2017, the plaintiff was notified that OPR determined that the unspecified

allegations of breach of integrity and unprofessional conduct “w[ere] a management issue and

that security management would solicit a fact finder to examine the allegations.” Id. ¶ 59. That

same day, the plaintiff’s “security clearance was reinstated for top secret collateral assets, but not

for sensitive compartmented information.” Id. ¶ 60. Then, in August 2017, the EEO conducted

an investigation, id. ¶ 61, and the plaintiff was provided with a copy of the investigative file

“[o]n or about September 25, 2017,” id. ¶ 62.

In October 2018, the plaintiff alleges that she was suspended following “an unclear

directive [she was given] regarding [her] duties[,]” despite her then-supervisor, Dwight Riley

(“Mr. Riley”), “admit[ing] that [her] 2016 reasonable accommodation was in place[,]” which

required “that instructions . . . be provided in writing [to the plaintiff] with an opportunity to

collaborate with” the plaintiff regarding the instructions. Id. ¶ 67. The plaintiff alleges that she

“experienced anxiety” from this “unclear directive” because “things were changing without her

knowledge or input.” Id. The plaintiff further alleges Mr. Riley, sent an email to a coworker,

Lorna Robinson (“Ms. Robinson”), stating that Mr. Riley “was ‘dealing’ with” the plaintiff after

the plaintiff “was issued [the] suspension letter . . . , [which] she did not take [ ] well.” Id.

¶¶ 64–65. According to the plaintiff, Mr. Riley stated that he “wrote [the plaintiff] up and

proposed a five-day suspension” after the plaintiff accused him of harassing her. Id. ¶ 65. Mr.

Riley also allegedly stated that “he was going to work the process until [the plaintiff] was

removed.” Id.

Then, on “April 7, 2020, the Department of Veteran Affairs reevaluated [the plaintiff]

and increased her disability rating from 50% to 70% . . . due to occupational and social

impairment with deficiencies in most areas, such as work, . . . judgment, thinking, or mood.” Id.

¶ 69. The next day, “April 8, 2020, the agency proposed [that the plaintiff] be removed from

service for ‘behavior similar to that [which occurred] on October 21, 2018.” Id. ¶ 70. On June

26, 2020, the plaintiff “was removed from duty.” Id. ¶ 72.

C. Administrative Procedural History

Because the plaintiff filed both an EEOC complaint after experiencing alleged

discrimination beginning in 2017, and then separately filed an appeal with the MSPB after being

removed from service by the defendant in 2020, the Court will briefly list the dates of each

administrative decision, as these dates are imperative to the Court’s analysis.

The plaintiff alleges that she “initiated contact with the EEO [ ] on or about March 1,

2017[,] . . .[and was given] notice[] of her right to file a formal EEO complaint on or about April

28, 2017[.]” Id. ¶¶ 10–11. The plaintiff filed her formal complaint that same day, April 28,

2017. Id. ¶ 11. “On or about September 25, 2017, [she] was provided a copy of the

[i]nvestigative [f]ile[,]” id. ¶ 12, and [o]n or about September 27, 2017, [she] requested a hearing

before an EEOC administrative judge[,]” id. ¶ 13.

In October 2021, the EEOC administrative judge issued a judgment and decision

“without a hearing finding that [the p]laintiff was not discriminated against.” Id. ¶ 14. The

plaintiff requested an appeal of that decision “with the EEOC Office of Federal Operations

[(‘OFO’) on] or about November 4, 2021.” Id. ¶ 15. The OFO affirmed the EEOC

administrative judge’s decision and the plaintiff requested reconsideration of the OFO’s decision.

See id. ¶¶ 16–17. Finally, on March 7, 2023, the OFO issued a decision affirming that the

plaintiff had not been discriminated against by the defendant. See id. ¶ 18.

While this EEO proceeding was progressing through the multiple appeals, the plaintiff

filed a separate appeal before the MSPB on June 30, 2020, after she was removed from service

by the defendant. See generally Pl.’s MSPB Appeal Form. On December 10, 2020, the MSPB

issued its initial decision affirming the defendant’s decision to remove the plaintiff from service.

See MSPB Initial Decision at 1.

D. Judicial Procedural History

On March 27, 2023, the plaintiff, initially proceeding pro se, filed her original Complaint

in the Court. See generally Compl. In response to the Complaint, on June 29, 2023, the

defendant filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1),

12(b)(5), and 12(b)(6). See generally Defendant’s Motion Dismiss at 1, ECF No. 9.

On January 18, 2024, the Court held a hearing on the defendant’s motion to dismiss and

granted the motion, finding, inter alia, that the Court lacked subject-matter jurisdiction. See

generally Jan. 2024 Mot. Hr’g Tr. The plaintiff subsequently retained counsel and filed a motion

requesting that the Court reconsider its decision to dismiss the plaintiff’s Complaint, see

Plaintiff’s Motion for Reconsideration (Rule 60(B)) at 1, 2 n.1, ECF No. 16, and sought leave to

file an amended complaint, see Notice of Motion for Leave to Amend the Complaint at 1, ECF

No. 17. The Court held a hearing on the motions on September 13, 2024, and granted the

plaintiff’s motions the same day. See Order at 1 (Sept. 13, 2024), ECF No. 21; Minute (“Min.”)

Entry (Sept. 13, 2024).

The plaintiff filed her Amended Complaint on September 13, 2024, see Am. Compl. at 1,

and the defendant filed his motion to dismiss pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6) on November 21, 2024, see Def.’s Mem. at 1. On December 11, 2024, the

plaintiff filed her opposition to the motion to dismiss, see Pl.’s Opp’n at 1, and the defendant

filed his reply to the opposition on January 30, 2025, see Def.’s Reply at 1.

II. STANDARD OF REVIEW

A. Rule 12(b)(1) Motion to Dismiss

“Federal [district] courts are courts of limited jurisdiction[,]” Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994), and therefore, “[a] motion for dismissal under

[Federal Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt’s

jurisdiction[,]’” Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.)

(quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to

dismiss a claim if it “lack[s] . . . subject matter jurisdiction[.]” Fed. R. Civ. P. 12(b)(1). And,

because “[i]t is to be presumed that a cause lies outside [the Court’s] limited jurisdiction,”

Kokkonen, 511 U.S. at 377, the plaintiff bears the burden of establishing by a preponderance of

the evidence that a district court has subject-matter jurisdiction, see Nurse v. Sec’y of Air Force,

231 F. Supp. 2d 323, 326 (D.D.C. 2002) (Walton, J.) (citations omitted).

III. ANALYSIS 8

The defendant argues that the Court should dismiss the plaintiff’s Amended Complaint

because the Court lacks subject-matter jurisdiction, or in the alternative because the Amended

Plaintiff’s Amended Complaint purports to seek “redress [for] unlawful employment discrimination on the basis of sex, disability, reprisal, hostile work environment and interference with statutorily protected rights in violation of Title VII of the Civil Rights Act of 1964, . . . and Section 501 of the Rehabilitation Act.” Am. Compl. at 1. However, the Amended Complaint solely pleads claims and requests relief under the Rehabilitation Act. See Am. Compl. at 18–20 (seeking relief from alleged “discrimination in violation of the Rehabilitation Act (Section 501)) (citation modified); id. at 20–21 (seeking relief from alleged “retaliation in violation of the Rehabilitation Act (Section 501)) (citation modified). Because the plaintiff has not developed, let alone mentioned, her Title VII claim anywhere in her Amended Complaint beyond this first sentence, she forfeited it and therefore the Court need not address it. See United States v. TDC Mgmt. Corp., 827 F.3d 1127, 1130 (D.C. Cir. 2016) (deeming an argument “forfeit[ed] because [the party] d[id] not further develop it (or even mention it again) after [a] ‘single, conclusory statement’” (quoting Bryant v. Gates, 532 F.3d 888, 898 (D.C. Cir. 2008)).

Complaint does not state a claim upon which relief can be granted. See Def.’s Mem. at 1; Def.’s

Reply at 1. As to its jurisdictional position, the defendant argues, inter alia, that claims

“pertaining to incidents that occurred in 2017 and 2018 . . . are time-barred.” Def.’s Mem. at 8;

see also Def.’s Reply at 4 (“[The plaintiff] filed her operative complaint beyond the ninety-day

time limit.”). The defendant also contends that the Court should dismiss this case because the

plaintiff has “fail[ed] to . . . [prove] that she . . . exhausted her administrative

remedies . . . relat[ed] to her [2020] termination[,] Def.’s Mem. at 16, or “any discrete claims that

occurred before January[ ] 2017,” id. at 18.

In opposition, the plaintiff contends that “[u]niversal [e]xhaustion [is] [n]ot [r]equired for

[h]ostile [w]ork [e]nvironment” claims. Pl.’s Opp’n at 6. Specifically, the plaintiff asserts that

the “defendant created [a hostile work environment],” which negates her exhaustion

requirements, id., and makes any time bar “inapplicable” because she continued to experience

“unlawful discrimination . . . within the filing period,” id. at 9 (citing Pearson v. Chao, No. 17-cv-1965 (EGS), 2019 WL 1004040 (D.D.C. Feb. 28, 2019)). The plaintiff also contends that the

claims in her Amended Complaint are timely because they “relate back to the initial [C]omplaint

on [their] own merits.” Id.

For the reasons below, the Court agrees with the defendant that it lacks subject-matter

jurisdiction in this case, and therefore, the Court does not address the defendant’s arguments that

the Amended Complaint also fails to state a claim upon which relief may be granted.

A. Whether the Claims in the plaintiff’s Amended Complaint Relate Back to the

Claims in her Original Complaint

The defendant argues that the plaintiff’s claims in her Amended Complaint “pertaining to

incidents that occurred in 2017 and 2018,” are “new discrete employment actions . . . that were

not in her original [C]omplaint” and which “are based on entirely different discrete employment

actions” and “new legal theories,” which “do not relate back to March 27, 2023, the date when

she filed her initial [C]ompaint.” Def.’s Mem. at 10. The defendant further contends that

because the allegations pertaining to the alleged 2017 and 2018 incidents do not relate back to

the original Complaint, they are time-barred. Id. at 8. The plaintiff responds that “the Amended

Complaint relate[s] back to the initial [C]omplaint on its own merits,” and that if there is

“distance between the two,” the Court should interpret this issue in favor of the plaintiff

“considering the pro se nature of the initial [C]omplaint.” Pl.’s Opp’n at 9.

Federal Rule of Civil Procedure 15 is the procedural authority that “permit[s a party] to

amend [her] complaint [at least] once as a matter of course[,]” Mann v. United States, No. 20-cv1337 (RC), 2022 WL 888181, at *2 (D.D.C. Mar. 24, 2022) (citing Fed. R. Civ. P. 15(a)(1)), to

cure any pleading deficiencies in the original complaint, Uzoukwu v. Metro. Wash. Council of

Gov’ts, 983 F. Supp. 2d 67, 83 (D.D.C. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)) (“[I]t is an abuse of discretion to deny leave to amend without a sufficient reason such

as . . . repeated failure to cure [pleading] deficiencies. . . .”) (internal quotations omitted).

Nevertheless, “[a] statute of limitations may [ultimately] bar the amendment unless it ‘relates

back’ to the original complaint. . . .” Harris v. Koenig, 673 F. Supp. 2d 8, 11 (D.D.C. 2009). In

other words, the amended complaint must “assert[] a claim or defense that arose out of the

conduct, transaction, or occurrence set out . . . in the original [complaint,]” Fed. R. Civ. P. 15, or

otherwise it will be time-barred if the statute of limitations has expired. Harris, 673 F. Supp. 2d

at 12. Moreover, “[r]elation back is improper when the amended complaint asserts a new ground

for relief supported by facts that differ in time and type from those [in] the original

pleading. . . .” Id. at 12 (citing Mayle v. Felix, 545 U.S. 644, 650 (2005) (internal quotations

omitted)).

Because the plaintiff’s Amended Complaint mainly details alleged discriminatory actions

that occurred in 2017 and 2018 (which also comprised her EEO complaint proceedings) and

requests relief based on those alleged discriminatory actions, the Court must determine whether

those facts and grounds for relief are sufficiently “related” to her original Complaint. 9 Once the

Court determines whether her Amended Complaint in fact relates back to her original Complaint,

the Court will then determine whether she timely challenged the defendant’s decision regarding

her EEO complaint.

The Court begins its analysis by first considering its earlier rulings regarding the

plaintiff’s original Complaint made during the hearing on the defendant’s motion to dismiss

conducted on January 18, 2024. See generally Jan. 2024 Mot. Hr’g Tr. During that hearing, the

plaintiff, who was proceeding pro se at the time, explained that she “felt [she] was [ ] terminated

because of discrimination [after] [she] had [filed] an EEOC complaint” and “also [because she]

asked for a reasonable accommodation.” Id. at 11:16–22. The defendant argued in response that

the plaintiff’s original Complaint “only pertain[ed] to her termination in 2020” and that the

separate EEOC complaint included “only alleged events that occurred in 2017 and 2018” and

was therefore “not relevant to this case.” Id. at 12:2–12. The plaintiff disagreed, arguing that

she “tied everything [ ] together” in her original Complaint, i.e., she attempted to challenge both

the alleged EEOC discrimination proceeding and the termination “at the same time” in her

Complaint. Id. at 13:24–14:4. The defendant replied, arguing that “the EEOC

complaint . . . d[id] not pertain to any of the allegations that she raised in her [judicial

C]omplaint . . . [a]nd . . . request[ed] that th[e] case be dismissed.” Id. at 14:14–18. The Court

Because the plaintiff filed her original Complaint pro se, the Court will “liberally construe[]” it, “however inartfully pleaded[.]” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (explaining that pro se filings “must be held to less stringent standards than formal pleadings drafted by lawyers”).

ultimately agreed that “the [defendant] ha[d] the proper argument[,]” id. at 12:16–17, [a]nd

[concluded that it] would have to grant the [defendant]’s motion.” Id. at 14:19–20. Therefore,

the Court found that when the original Complaint was the operative complaint in this case, it did

not challenge the alleged discrimination that comprised the EEOC complaint, but only

challenged the plaintiff’s 2020 termination.

Having reviewed the plaintiff’s original Complaint anew, the Court again concludes that

although it references the EEOC proceeding, it does not seek any relief based on the facts that

comprised the EEOC proceeding. Instead, the plaintiff’s original Complaint merely alleges that

the plaintiff’s “removal from federal service comprised retaliation based on her prior EEO

activity against the [defendant].” Compl. at 12. 10 For example, the plaintiff alleged in her

original Complaint that there was “a causal connection between [the p]laintiff’s protected action

and the [defendant]’s personnel actions.” Id. Specifically, the plaintiff argued that employees of

the defendant “conspired a medical retirement without [the p]lainitff[’s] knowledge[] or consent”

and “forced [her] into retirement involuntar[il]y due to her disability,” even though they were

“aware of [her] prior EEO activity.” Id. (citing Records Reflecting Pl.’s Medical Ailments at 1–

18). The plaintiff also details the alleged email between Mr. Riley and Ms. Robinson 11 in

October 2018, in which Mr. Riley stated that after the plaintiff accused him of harassing her, Mr.

Riley “wrote her up and proposed a 5-day suspension” that was issued the day he sent the email

This conclusion is also consistent with what the plaintiff included in her MSPB Appeal Form. See generally Pl.’s MSPB Appeal Form. In the section of the form which asks “why . . . the agency was wrong in taking th[e] action” of removing her from service, the plaintiff wrote that “[t]he action was predicated on the fact that [the plaintiff] [ ] filed an EEOC Complaint[,] and [she] believes th[e] removal was retaliation and an act of discrimination based on her prior EEO activity.” Id. at 6. The plaintiff also stated that “[t]he [a]gency did not adequately take into account the Douglas Factors in mitigating the removal proposal to an action lesser than removal from federal service.” Id. 11

Although it appears from the plaintiff’s original Complaint that the email was between Mr. Riley and Donald Torrence, see Compl. at 13, in her Amended Complaint she alleges that the email was between Mr. Riley and Ms. Robinson, see Am. Compl. ¶¶ 65–66.

to Ms. Robinson. Compl. at 13. The plaintiff also alleged that Mr. Riley also stated: “[i]f she

wants to go down this road, she got the right one[.] I am willing and I will do all my

homework. . . . I’m going to work the process until she complies or gets removed.” Id.

However, as concerning as this email is, if this is truly what Mr. Riley said, the Court finds that

the original Complaint alleges retaliation following, or in relation to, the EEOC proceeding

which resulted in the plaintiff’s ultimate termination. And, that is distinct from a challenge to the

discrete acts of alleged discrimination in 2017 and 2018, that comprised her EEOC complaint.

To be sure, the Amended Complaint details, inter alia, that after the plaintiff “requested a

reasonable accommodation” in October 2016, her “first line supervisor” removed her from the

team she was previously assigned to and she became “concerned that [he] was attempting to

limit her duties based on her request for accommodation[s]” which “caused her to experience an

exacerbation of the symptoms associated with her mental health diagnosis.” Am. Compl. ¶¶ 34–

37. Then in early 2017, the plaintiff alleges that she was instructed to cease working on the tasks

to which she was previously assigned. Id. ¶¶ 42, 45. When the plaintiff asked why her duties

were being reduced, her supervisor allegedly told her “that he was the director and he made the

decisions.” Id. ¶ 42. The plaintiff alleges that this exchange caused her anxiety to increase. Id.

Then, after the plaintiff “initiated informal counseling through the EEO office” and “mentioned

[to her supervisor] that she had [ ] suicidal thoughts and was in contact with her treating

doctors[,]” her supervisor “received a memo [notifying him] that [the plaintiff]’s security

clearance was suspended until the conclusion of an internal investigation.” Id. ¶¶ 46–48.

Additionally, the plaintiff alleges that she was denied leave between March 7, 2017 and March

21, 2017, id. ¶ 51, and received a job reassignment on March 21, 2017, id. ¶ 52, was “suspended

indefinitely [on April 7, 2017] because her security clearance had been suspended[,]” id. ¶ 55,

and was denied a “request for reasonable accommodation in the form of working in a different

location” without an explanation for the denial on April 12, 2017, id. ¶ 57.

The alleged discriminatory actions described above from the Amended Complaint do not

appear in the plaintiff’s original Complaint. Rather, at most, the plaintiff alleges in her original

Complaint that “[d]uring the period of January 2020 through February 2020, [she] was not

provided clear written instructions for work assignments and open channels of communications

between her[self] and her supervisors[,]” which was contrary to her previously authorized

reasonable accommodations. Compl. at 15. But this grievance regarding the alleged failure to

provide her reasonable accommodations in 2020 is different in time than the alleged denial of her

reasonable accommodations request she described occurred in 2017 in her Amended Complaint.

For all the foregoing reasons, the Court finds that the allegations detailed in the plaintiff’s

Amended Complaint that relate to the alleged discriminatory actions at issue in her earlier filed

EEOC action do not “relate back” to the allegations regarding the ultimate decision to terminate

her employment alleged in her original Complaint. See Sept. 2024 Mot. Hr’g Tr. at 14:12–14:19

(previously concluding that because “the allegations that are being raised in the [A]mended

[C]omplaint are totally different than the allegations that were raised in the original complaint”

the Amended Complaint does not “relate back to what was raised in the original [C]omplaint”).

However, the Court finds that since both the Amended Complaint and the original

Complaint also assert a claim related to the defendant’s ultimate decision to terminate the

plaintiff’s employment, this claim “ar[i]se[s] out of the conduct, transaction, or occurrence set

out—or attempted to be set out—in the original pleading[.]” Fed. R. Civ. P. 15(c)(B).

Specifically, as noted above, the original Complaint challenges her ultimate removal by arguing

that (1) “the Douglas 12 factors were not properly weighed” when determining to remove the

plaintiff from federal service, Compl. at 10; (2) the plaintiff’s “removal was erroneous” because

it “was based on prohibited personnel practice[s,]” id. at 11–12; (3) the plaintiff’s “removal from

federal service comprised retaliation based on her prior EEO activity against the [a]gency[,]” id.

at 12; and (4) the plaintiff’s “removal from federal service was a product of disability

discrimination against [the p]laintiff by the [a]gency[,]” id. at 14. Likewise, the Amended

Complaint alleges that the plaintiff’s removal was a discriminatory and retaliatory action in

violation of the Rehabilitation Act. See Am. Compl. ¶¶ 72–73, 77–82, 85–90.

Because the Court finds that these alleged incidents which occurred in 2017 and 2018 do

not relate back to the original Complaint, the Court must next determine if the plaintiff timely

brought those claims in her Amended Complaint.

1. Whether the Claims Related to the Alleged 2017 and 2018 Incidents Included in the

EEO Proceeding are Time-barred

The defendant argues that the “2017 and 2018” incidents “pursued through the EEO

process [ ] are time-barred” because they were initiated in this Court “more than ninety days after

[the plaintiff] receiv[ed] the EEOC’s final decisions and” the plaintiff has not alleged why these

claims should be equitably tolled. Def.’s Mem. at 8. The defendant argues that, in order to have

timely challenged her claims that relate to the 2017 and 2018 actions encompassed in her EEO

proceedings, the plaintiff must have filed her claim in this Court by June 5, 2023. See Def.’s

Mem. at 9. However, according to the defendant, because the Court did not accept the plaintiff’s

Amended Complaint as filed until September 13, 2024, the appeal of the EEO decision was well

past the ninety-days the plaintiff had to challenge the decision. Id. at 10. The plaintiff

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

summarily responds that “all acts constituting the claim are part of the same unlawful

discrimination and more than one fall within the filing period.” Pl.’s Opp’n at 9.

Generally, “a Rehabilitation Act claim against a federal agency must be filed [in a] U.S.

District Court ‘[w]ithin 90 days of receipt of notice of final action taken by [the Agency].’”

Jefferson v. Austin, No. 21-cv-1489 (RC), 2024 WL 3967283, at *2 (D.D.C. Aug. 27, 2024)

(quoting 42 U.S.C. § 2000e-16(c)); see Grant v. Dep’t of Treasury, 272 F. Supp. 3d 182, 189

(D.D.C. 2017) (same). The District of Columbia Circuit “requires strict adherence to the 90-day

requirement.” Grant, 272 F. Supp. 3d at 189; see Woodruff v. Peters, 482 F.3d 521, 525 (D.C.

Cir. 2007) (“Courts apply [the 90–day] limit strictly and will dismiss a suit for missing the

deadline by even one day”) (internal quotations omitted). Failure to adhere to “the

administrative time limit[] . . . erect[s] no jurisdictional bars to bringing suit,” Doak, 798 F.3d at

1104, but it does “function[] like a statute of limitations.” Grant, 272 F. Supp. at 189; see

Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988) (holding that time limits

included in administrative regulations “have the force and effect of law”) (internal quotations

omitted). Therefore, the limitation period may be equitably tolled only if a plaintiff proves that

an “extraordinary reason(s) . . . warrant tolling the 90-day limit to file suit.” Grant, 272 F. Supp.

at 189; see Jefferson, 2024 WL 3967283, at *2 (citing Smith-Haynie v. District of Columbia, 155

F.3d 575, 579 (D.C. Cir. 1998)) (explaining that the filing period operates as a statute of

limitations and is subject to equitable tolling and waiver). For example, “[a]n employee is

entitled to equitable tolling if [s]he demonstrates [] that [s]he has been pursuing h[er] rights

diligently[] and . . . some extraordinary circumstance stood in h[er] way.” Niskey, 859 F.3d at 7

(citing Holland v. Florida, 560 U.S. 631, 649 (2010)).

“[F]ederal courts have typically extended equitable relief only sparingly,” granting it in

such cases involving “a defective pleading during the statutory period, or where the complainant

[was] induced or tricked . . . into allowing the filing deadline to pass.” Williams v. Perdue, 613

F. Supp. 3d 437, 448 (D.D.C. 2020) (quoting Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96

(1990)). “But [the Supreme Court] has generally been much less forgiving in receiving late

filings where the claimant failed to exercise due diligence [to] preserv[e] h[er] legal rights.” Id.

(quoting Irwin, 498 U.S. at 96).

In this case, the plaintiff “has only a garden variety claim of excusable neglect,” Davis v.

Vilsack, 880 F. Supp. 2d 156, 162 (D.D.C. 2012) (citing Irwin, 498 U.S. at 96), considering that

she was “unambiguously notified that [she] must sue within ninety days.” Id. (quoting

Dougherty v. Barry, 869 F.2d 605, 613 (D.C. Cir. 1989)); see EEOC Decision on Request for

Reconsideration at 5 (advising the plaintiff that she must file for judicial review of the EEOC

decision within ninety days).

As the defendant notes, the plaintiff “received [her] right to sue notices on March 7,

2023[,]” from the OFO denying her request for reconsideration of the EEOC’s decision finding

that the defendant did not discriminate against the plaintiff “based on sex, disability, [or] in

reprisal for prior EEO activity.” See Def.’s Mem. at 9 (citing Am. Compl. ¶ 18 describing that

“[o]n or about March 7, 2023, the OFO issued a decision upholding the October 27, 2021,

administrative decision”); EEOC Decision on Request for Reconsideration at 1, 3. The OFO’s

Decision on Request for Reconsideration explained that “[t]here [wa]s no further right of

administrative appeal on the decision of the” EEOC, and that the plaintiff had “the right to file a

civil action in an appropriate United States District Court within ninety (90) calendar days from

the date that [the plaintiff] receive[d] th[e] decision[,]” i.e., March 7, 2023. EEOC Decision on

Request for Reconsideration at 3–4. Accordingly, the plaintiff should have filed her Complaint

on or before June 5, 2023, which was ninety days from March 7, 2023. And, as noted above,

although the plaintiff filed her original Complaint in this Court on March 27, 2023, the claims

and relief sought in the Complaint did not challenge the EEOC’s decision. Instead, the

Complaint challenged the defendant’s ultimate decision to remove her from service. Therefore,

since the plaintiff’s claims regarding the issues in her EEOC complaint do not relate back to

when she filed her initial Complaint, she did not properly initiate her claims in this Court until

September 13, 2024, i.e., the filing date of her Amended Complaint. 13 Thus, because the

plaintiff’s claims were filed well beyond the ninety-day window, the Court must determine

whether the filing deadline should nevertheless be equitably tolled.

The plaintiff seemingly advances no reason why the Court should find that her claims are

subject to equitable tolling, beyond broadly arguing in her opposition to the defendant’s motion

to dismiss that her original Complaint was filed pro se and therefore should be reviewed in a

more liberal light. See Pl.’s Opp’n at 10–11; see generally Am. Compl.; see also Def.’s Reply at

8 (arguing that the plaintiff “conspicuously does not raise the issue of, nor put forth any facts to

support an argument for, equitable tolling in her amended complaint or opposition.”). However,

simply representing that the plaintiff originally filed her Complaint pro se does not amount to an

“extraordinary circumstance” warranting equitable tolling of her 2017 and 2018 claims. See

Niskey, 859 F.3d at 9–10 (affirming the district court’s finding that the appellant’s claims were

not timely raised despite the fact that the appellant proceeded before the agency pro se); Lewis v.

Although the Court accepted the plaintiff’s Amended Complaint “as filed” on September 13, 2024, see Order (Sept. 13, 2024), ECF No. 21, it was filed on the docket on February 18, 2024, see Am. Compl. at 22. In any event, regardless of whether the plaintiff’s Amended Complaint must be considered “as filed” on February 18, 2024 or when the Court designated it as filed on September 13, 2024, is of no moment to the Court’s analysis because either date would have been well past the ninety day date of June 5, 2023.

Sec’y of the Navy, 892 F. Supp. 2d 1, 5 (D.D.C. 2012) (explaining that even pro se plaintiffs

must act diligently in pursuing their claims within the statutory filing period). Further, as other

judges in this District have recognized, the plaintiff’s “inability to retain an attorney is not an

extraordinary circumstance [that warrants equitable tolling.]” Miller v. Downtown Bid Servs.

Corp., 281 F. Supp. 3d 15, 22 (D.D.C. 2017) (citation omitted); see also United States v.

Lawson, 608 F. Supp. 2d 58, 62 (D.D.C. 2009) (“[A] failure to meet [a] statutory deadline due to

pro se representation is [an inadequate] circumstance . . . to toll the statute of limitations.”). Of

significant consideration is the fact that, even considering the plaintiff’s pro se posture at the

time she filed her original Complaint, she did not list any of the twenty-two items clearly

delineated in the OFO’s Decision on Request for Reconsideration in her Complaint. See EEOC

Decision on Request for Reconsideration at 1–3. Instead, as discussed above, the plaintiff

merely challenged the defendant’s ultimate decision to terminate her employment.

Accordingly, because the plaintiff’s 2017 and 2018 claims related to the EEOC’s

decision are time-barred, and she has not advanced a good reason as to why they should be

equitably tolled, the Court will grant the defendant’s motion to dismiss, to the extent that he asks

this Court to dismiss the plaintiff’s claims related to the 2017 and 2018 alleged events referenced

in the EEOC proceedings. 14

In the plaintiff’s Amended Complaint, she also details factual allegations related to a 2016 informal EEOC complaint she filed and then later withdrew. See Am. Compl. ¶¶ 34–38. The defendant contends that “[a]ny discrete claims” the plaintiff alleges “that occurred before January 2017, should be dismissed because . . . [they] were abandoned and” the plaintiff failed to exhaust her administrative remedies. Def.’s Mem. at 18–20. The Court agrees with the defendant that any claim the plaintiff seeks to bring related to these allegations that occurred before January 2017 were abandoned by the plaintiff when she withdrew her EEOC complaint related to those allegations and then failed to file another complaint before the EEOC that included those allegations. See, e.g., Am. Compl. ¶ 20 (only listing claims accepted for investigation beginning with allegations in 2017); EEOC Decision on Request for Reconsideration at 1–3 (only listing allegations of discrimination and harassment that occurred from January 9, 2017, to October 21, 2018); Payne v. Salazar, 619 F.3d 56, 58 (D.C. Cir. 2010) (“An employee who is aggrieved by the agency’s final disposition of her complaint may then either appeal to the EEOC or file suit in federal court pursuant to 42 U.S.C. § 2000e–16(c)”); Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (explaining “that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on

(Continued . . .)

B. Whether the plaintiff’s Claims Challenging the defendant’s Ultimate Decision to

Remove Her From Service Were Timely Filed

Finally, the Court will address whether the plaintiff timely brought her claims

challenging the defendant’s ultimate decision to remove her from service. The defendant argues

that the Court lacks subject-matter jurisdiction over the plaintiff’s claims in her Amended

Complaint because she “fail[ed] to meet her burden of showing that she [ ] exhausted her

administrative remedies for the claims pursued through the MSPB appeal process[,]” i.e., the

plaintiff’s claims “relating to her termination . . . in 2020.” Def.’s Mem. at 16; Def.’s Reply at

4–5. The defendant further contends that the plaintiff “does [not] even hint nor address the

exhaustion for claims relating to her 2020 termination[,]” and her Amended Complaint “is

devoid of any explanation that could support an argument for equitable tolling.” Def.’s Mem. at

17. The plaintiff responds that because she “alleg[es] a hostile work environment” claim and “all

acts constituting the claim are part of the same unlawful discrimination and more than one fall

within the filing period,” her claims are not time barred. Pl.’s Opp’n at 9. For the following

reasons, the Court agrees with the defendant and will therefore dismiss the plaintiff’s claims

related to her 2020 removal from service because they were not timely filed.

“[E]xhaustion . . . is a jurisdictional requirement[] [that] the plaintiff [must] . . . plead and

prove,” Reagan-Diaz v. Sessions, 246 F. Supp. 3d at 345 (citing Spinelli, 446 F.3d at 162), and

the requirement is not satisfied “when the complaint . . . file[d] in federal court includes []

claim[s] that w[ere] not raised in the administrative complaint.” Mogenhan v. Shinseki, 630 F.

the charge[; and o]nly after the EEOC has notified the aggrieved person of its decision to dismiss or its inability to bring a civil action within the requisite time period can that person bring a civil action herself”); McKeithan v. Boarman, 803 F. Supp. 2d 63, 67–68 (D.D.C. 2011) (finding that when the plaintiff failed to object to the framing of the issues the EEO listed in the notice accepting the plaintiff’s complaint, the plaintiff abandoned the claims not listed); Cheatham v. Holder, 935 F. Supp. 2d 225, 237–38 (D.D.C. 2013) (finding that because the plaintiff did not raise two of his four EEO issues before the EEOC prior to filing his lawsuit, the plaintiff did not exhaust his administrative remedies as to the two issues and therefore the court could not consider them).

Supp. 2d 56, 60 (D.D.C. 2009) (citing Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995));

see Barkley, 766 F.3d at 34 (“[T]he requirement that the aggrieved employee first seek an

administrative resolution . . . commands strict adherence.”). “Exhaustion is required in order to

give federal agencies an opportunity to handle matters internally whenever possible and to

ensure that the federal courts are burdened only when reasonably necessary.” Brown v. Marsh,

777 F.2d 8, 14 (D.C. Cir. 1985).

Therefore, a “plaintiff who fails to comply, to the letter, with administrative deadlines

‘ordinarily will be denied a judicial audience.’” Id. at 13 (quoting Shehadeh v. Chesapeake &

Potomac Tel. Co. of Md., 595 F.2d 711, 717–18). However, as discussed above, administrative

deadlines “function like a statute of limitations and ‘like a statute of limitations, are subject to

waiver, estoppel, and equitable tolling.’” Id. (internal brackets omitted) (quoting Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393 (1982)).

In the plaintiff’s opposition to the defendant’s motion to dismiss, she argues that she

brought a hostile work environment claim in her Amended Complaint. Pl.’s Opp’n at 6–7

(arguing that the “plaintiff’s complaint alleges a litany of facts more than sufficient to establish

the hostile work environment which the defendant created for the plaintiff.”). However, the

plaintiff’s Amended Complaint pleads only two claims: (1) “discrimination in violation of the

Rehabilitation Act” and (2) “retaliation in violation of the Rehabilitation Act.” Am. Compl. at

18, 20 (citations modified). Only in the introduction paragraph of the plaintiff’s Amended

Complaint does she seek “redress” from, inter alia, “unlawful employment discrimination on the

basis of sex, disability, reprisal, [and a] hostile work environment. . . .” See Am. Compl. at 1.

The Court cannot allow the plaintiff, who is now represented by counsel, to pursue a hostile

work environment claim by simply making one undeveloped assertion of such claim in the

introduction of her Amended Complaint. See United States v. TDC Mgmt. Corp., 827 F.3d

1127, 1130 (D.C. Cir. 2016) (deeming an argument “forfeit[ed] because [the party] d[id] not

further develop it (or even mention it again) after [a] ‘single, conclusory statement’” (quoting

Bryant v. Gates, 532 F.3d 888, 898 (D.C. Cir. 2008)); Johnson v. Panetta, 953 F. Supp. 2d 244,

250 (D.D.C. 2013) (“[P]erfunctory and undeveloped arguments, and arguments that are

unsupported by pertinent authority, are deemed waived.”) Accordingly, the Court finds that the

plaintiff waived any claim alleging that she was subjected to a hostile work environment and she

may not make amendments to her Amended Complaint through her opposition brief to the

defendant’s motion to dismiss. See Statewide Bonding, Inc. v. U.S. Dep’t of Homeland Sec.,

980 F.3d 109, 117 n.5 (D.C. Cir. 2020) (“[I]t is axiomatic that a complaint may not be amended

by the briefs in opposition to a motion to dismiss”) (citing Coleman v. Pension Benefit Guar.

Corp., 94 F. Supp. 2d 18, 24 n.8 (D.D.C. 2000)).

As to the timeliness of her claims challenging the MSPB’s initial decision affirming the

defendant’s removal decision, 5 U.S.C. § 7703 is clear—“[c]ases of discrimination subject to

[the Civil Rights Act of 1964 or section 501 of the Rehabilitation Act of 1973] must be filed

within 30 days after the date the individual filing the case received notice of the judicially

reviewable action.” 5 U.S.C. § 7703(b)(1)(B)(2). Here, the MSPB’s initial decision put the

plaintiff on notice of this statutory requirement by stating in the “Notice of Appeal Rights”

section:

(2) Judicial or EEOC review of cases involving a claim of discrimination. This

option applies to you only if you have claimed that you were affected by an action

that is appealable to the Board and that such action was based, in whole or in part,

on unlawful discrimination. If so, you may obtain judicial review of this decision—

including a disposition of your discrimination claims—by filing a civil action with

an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal

Circuit), within 30 calendar days after this decision becomes final under the rules

set out in the Notice to Appellant section, above. . . . Alternatively, you may request

review by the Equal Employment Opportunity Commission (EEOC) of your

discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You

must file any such request with the EEOC’s Office of Federal Operations within 30

calendar days after this decision becomes final as explained above. 5 U.S.C. §

7702(b)(1).

MSPB Initial Decision at 50 (emphasis added). Because the plaintiff did not “petition for

review” of the MSPB’s initial decision, see MSPB Proof of Final Decision at 1, 15 the initial

decision became the MSPB’s final decision on January 14, 2021, see MSPB Initial Decision at

44. The plaintiff therefore had thirty-days from January 14, 2021, to file her complaint in this

Court challenging the MSPB’s initial decision because her claims consisted of allegations of

discrimination. However, the plaintiff did not file her Complaint in this Court until March 27,

2023, approximately two-years after the statutory deadline. Therefore, because the plaintiff’s

claims were filed untimely, the Court may only allow the plaintiff to pursue her claims

challenging her 2020 termination if the Court finds that good cause exits to toll the statutory

deadline. But, as explained below, the plaintiff fails to prove any such good cause.

Neither in the plaintiff’s Amended Complaint nor in her opposition brief to the

defendant’s motion to dismiss does the plaintiff advance any reason why the Court should

equitably toll the statute of limitations regarding her challenge to the MSPB’s initial decision,

i.e., she has not “demonstrate[d] [ ] that [s]he has been pursuing h[er] rights diligently[]

and . . . some extraordinary circumstance stood in h[er] way.” Niskey, 859 F.3d at 7. To the

contrary, when asked during the motion hearing whether the plaintiff believed she exhausted her

administrative remedies before filing her Complaint in this Court, the plaintiff explained that she

“spoke to [her] attorney and [she] asked him [whether she] could [ ] appeal” the MSPB’s initial

After the plaintiff filed her Complaint in this Court, counsel for the defendant inquired from staff at the MSPB whether the plaintiff filed a petition for review from the MSPB’s initial decision, and staff at the MSPB confirmed that the plaintiff did not petition for review and therefore the initial decision became a final decision on January 14, 2021. See MSPB Proof of Final Decision at 1.

decision. Jan. 2024 Mot. H’rg Tr. 8:18–20. According to the plaintiff, her attorney told her “that

[she] didn’t have a chance of winning . . . [s]o [she] didn’t file because of what [her attorney]

told [her].” Id. at 8:20–8:21, 9:4–9:5. The plaintiff explained that she “just moved on, because

[the] VA and [her] doctor said [she] had been through so much . . . [and she] was following [her]

lead counsel[.]” Id. at 9:6–9:8. Then, during the motion hearing held on September 13, 2024,

the plaintiff’s current counsel explained that she was “not sure whether or not[,] as [a] pro se

plaintiff[, the plaintiff] truly understood which complaint – which matter she was appealing and

whether or not they had all merged together.” Sept. 2024 Mot. Hr’g Tr. at 5:1–5:4.

The Court previously found that despite the plaintiff’s representation that she failed to

exhaust her “administrative remedies within the agency” in “a timely manner” “because of bad

advice [she] received from [her] lawyer[,]” that explanation did not amount to “a sufficient

ground to survive the motion to dismiss.” Jan. 2024 Mot. Hr’g Tr. at 10:4–10:9. Instead, the

Court explained that if the plaintiff believed she received bad advice from her previous lawyer,

the proper avenue for the plaintiff to take would be “to try and hold the lawyer accountable for

that.” Id. at 12:19–12:21. See e.g., Mavity v. Fraas, 456 F. Supp. 2d 29, 33 (D.D.C. 2006)

(considering a plaintiff’s claims alleging that her attorneys, inter alia, committed legal

malpractice by “fail[ing] to adequately prepare and pursue her [gender discrimination

administrative claim] through the [administrative] process . . .”); Thomas v. Lescht, No. 23-cv3528 (TSC), 2025 WL 370984, *2 (D.D.C. Feb. 3, 2025) (explaining that “[c]ourts in this

jurisdiction have determined that ‘breach of contract or attorney malpractice claims properly

belong in state court, even where the underlying case involved claims arising under federal

law’”) (quoting Steele v. Salb, 681 F. Supp. 2d 34, 36 (D.D.C. 2010)); Hughley v. Weinstock,

Friedman & Friedman, PA, 06-cv-88 (RWR), 2006 WL 2244574, *1 (D.D.C. Aug. 4, 2006 )

(remanding a case to the Superior Court of the District of Columbia in which the plaintiff alleged

a claim of legal malpractice against an attorney for failing to serve a complaint and summons and

prosecute a case in an Equal Employment Opportunity proceeding against the United States

Postal Service); Cf. Atlanta Channel, Inc. v. Solomon, No. 15-cv-1823 (RC), 2020 WL 4219757,

*7 (D.D.C. July 23, 2020) (finding that “[a] reasonable jury could find that the loss of [a legal

malpractice] claim against [a former attorney the plaintiff hired] was reasonably foreseeable [to a

new attorney the plaintiff hired] based on [the newly hired attorney’s] failure to discuss the issue

[with the plaintiff] after she took over the matter” and that “[a] reasonable jury could find that

[the newly hired attorney] knew, or should have known, about the potential malpractice claim

against [the former attorney] . . . , [and] that the statute of limitations would be running. . . .”).

Therefore, because the plaintiff neither during the motion hearings, in her Amended

Complaint, or in her opposition to the defendant’s motion to dismiss has demonstrated that good

cause exists to toll the statutory deadline regarding the appeal of the MSPB’s initial decision, the

Court must dismiss the remainder of the plaintiff’s Amended Complaint. And, because the Court

lacks subject-matter jurisdiction over the plaintiff’s Amended Complaint it need not address the

merits of her claims.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that it must grant the defendant’s motion

to dismiss the plaintiff’s Amended Complaint because the Court lacks subject-matter

jurisdiction.

SO ORDERED this 11th day of September, 2026. 16

REGGIE B. WALTON

United States District Judge

The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

Ward v. Mayorkas

Authorities cited

Opinion · public domain