Chan v. Federal Communications Commission

• Court: District Court, District of Columbia
• Decided: March 8, 2018
• Docket: Civil Action No. 2017-0921
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXANDER CHAN,

Plaintiff,

v. Civil Action No. 17-921 (TJK)

FEDERAL COMMUNICATIONS COMMISSION,

Defendant.

MEMORANDUM OPINION

Before the Court is Defendant’s Motion to Dismiss. ECF No. 6 (“Mot.”). For the

reasons stated therein, the Motion is granted as conceded. Plaintiff’s complaint (ECF No. 1), and

the case, are dismissed without prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 17, 2017, Plaintiff Alexander Chan, proceeding pro se, filed suit in this Court

against his former employer, the Federal Communications Commission (“FCC”). ECF No. 1

(“Compl.”). Chan, who is partially disabled and Asian American, voluntarily retired from his

position at the FCC in 2010. Compl. at 1-2; Mot. at 1. In his short complaint, he appears to

claim that, while employed with the FCC, he was passed over for a promotion due to his

disability and race. Compl. at 1-2. The complaint does not allege exactly when this purported

discrimination occurred. See Compl.; Mot. at 5 & Ex. A. It also does not explicitly set forth

Chan’s causes of action. See Compl. The FCC has, reasonably, interpreted his complaint as

bringing claims under the Rehabilitation Act, 29 U.S.C. § 701 et seq., and Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq. Mot. at 1, 5 & n.2. Notably, in his

complaint, Chan does not allege that he exhausted his administrative remedies, a prerequisite to

filing such claims under Title VII or the Rehabilitation Act, before filing this lawsuit. See

Compl.

On September 20, 2017, the FCC moved to dismiss the complaint pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) for failure to exhaust administrative remedies.

Mot. at 1. Specifically, the FCC explained that in January 2017, more than six years after he left

the agency, Chan filed an informal complaint with its Equal Employment Opportunity (“EEO”)

office, the Office of Workplace Diversity (“OWD”). Id. at 2. He subsequently met with an EEO

counselor who, at the conclusion of counseling, informed Chan of his right to file a formal

complaint with the OWD. Id. at 2 & Ex. F. But Chan did not do so, and the OWD closed its

investigation. Mot. at 2.

On October 30, 2017, the Court issued an order instructing Chan to respond to the

Motion by November 30, 2017, and noted that “[i]f Plaintiff fails to file a timely response to

Defendant’s Motion, the Court may treat it as conceded and, if circumstances warrant, render a

judgment in favor of Defendant.” ECF No. 7 at 2. Because the record was not clear as to

whether Chan timely received that order, the Court issued a similar order on January 30, 2018

instructing Plaintiff to respond by February 28, 2018. ECF No. 8. As of the date of this opinion,

Chan has not responded to either order.

II. LEGAL STANDARD

Under Local Rule 7(b), if a party does not respond to a motion to dismiss within the

prescribed time, “the Court may treat the motion as conceded.” The D.C. Circuit has permitted

this practice. See Cohen v. Bd. of Trs. of the Univ. of D.C., 819 F.3d 476, 480 (D.C. Cir. 2016);

2 Jackson v. Todman, 516 F. App’x 3 (D.C. Cir. 2013); Fox v. Am. Airlines, Inc., 389 F.3d 1291,

1293-94 (D.C. Cir. 2004) (affirming district court’s “straightforward” application of Local Rule

7(b) where the district court treated a motion as conceded “because the plaintiffs failed to

respond”). But it has also found that dismissing a conceded motion with prejudice can be an

abuse of discretion. See Cohen, 819 F.3d at 484 (“[T]he district court . . . abused its discretion

by dismissing the case when its dismissal of the complaint under Local Rule 7(b) should have

been, at most, without prejudice.”).

Moreover, “[a] plaintiff may file a Title VII or Rehabilitation Act action in federal court

only after exhausting her administrative remedies before the relevant federal agency for each

allegedly discriminatory act.” Smith v. Lynch, 106 F. Supp. 3d 20, 41 (D.D.C. 2015) (collecting

cases). “Title 29 of the Code of Federal Regulations describes the administrative process for

filing discrimination complaints against the federal government.” Blue v. Jackson, 860 F. Supp.

2d 67, 72 (D.D.C. 2012). “[O]ne who believes he has been subjected to discrimination by his

federal-government employer ‘must consult a[n] [EEO] Counselor prior to filing [a formal

administrative] complaint in order to try to informally resolve the matter.’” Id. (quoting 29

C.F.R. § 1614.105(a)). The “aggrieved person must initiate contact with a[n] [EEO] Counselor

within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R.

§ 1614.105(a)(1). If counseling is unsuccessful, “[i]n order to exhaust administrative remedies, a

complainant must file . . . a formal complaint” with the agency. Blue, 860 F. Supp. 2d at 73

(citing Hamilton v. Geithner, 666 F.3d 1344, 1350 (D.C. Cir. 2012)). An employee may seek

relief in federal court only after an agency issues a final adverse decision or 180 days have

elapsed, whichever comes first. Id. (discussing Title VII exhaustion); Dick v. Holder, 80 F.

Supp. 3d 103, 110, 117 (D.D.C. 2015) (discussing Rehabilitation Act exhaustion).

3 III. ANALYSIS

The Court finds that the facts of this case present a “straightforward” application of Local

Rule 7(b). See, e.g., Fox, 389 F.3d at 1294; Voacolo v. Fed. Nat’l Mortg. Ass’n, 224 F. Supp. 3d

39, 43 (D.D.C. 2016) (“The Court finds that the facts of this case present a ‘straightforward’

application of Local Rule 7(b) because [plaintiff] has not asked for additional time or filed any

response to the motions to dismiss despite repeated warnings to do so.”). On September 20,

2017, the FCC moved to dismiss Chan’s complaint on the ground that he failed to exhaust his

administrative remedies because he did not timely initiate contact with an EEO Counselor or file

a formal complaint with the OWD before filing this action. Mot. at 5-8. Chan never responded

to this Motion, despite two warnings from this Court to do so. See ECF Nos. 7-8. Thus,

pursuant to Local Rule 7(b), the Court treats the FCC’s Motion as conceded and grants it. See,

e.g., Jackson, 516 F. App’x 3; Voacolo, 224 F. Supp. 3d at 43; Davenport v. United States, No.

07-cv-56 (RJL), 2007 WL 2122394, at *1 (D.D.C. July 24, 2007) (“In light of the fact that

plaintiff failed to file an opposition to defendants’ motion to dismiss, even when the Court issued

an Order requiring the plaintiff to do so or face the consequences of it being treated as conceded,

. . . the Court will treat defendants’ motion as conceded.”).

Although the FCC requests that Chan’s complaint be dismissed with prejudice, Mot. at

10, the Court declines to do so. The FCC has not argued why this case satisfies the “high” bar

for dismissing a complaint with prejudice, Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir.

2006), and the Court treads lightly when issuing a “case-ending sanction,” Peterson v. Archstone

Communities LLC, 637 F.3d 416, 417 (D.C. Cir. 2011). Cf. Cohen, 819 F.3d at 484 (noting

“dismissal of the complaint without prejudice would have been the proper route to accomplish

Local Rule 7(b)’s docket-management objectives”); Rudder v. Williams, 666 F.3d 790, 794 (D.C.

4 Cir. 2012) (“Dismissal with prejudice is the exception, not the rule, in federal practice because it

‘operates as a rejection of the plaintiff’s claims on the merits and [ultimately] precludes further

litigation of them.’” (alteration in original) (quoting Belizan, 434 F.3d at 583)). Thus, the Court

will dismiss the complaint, and the case, without prejudice.

IV. CONCLUSION

For the reasons set forth above, the FCC’s Motion to Dismiss (ECF No. 6) is GRANTED

AS CONCEDED. Plaintiff’s complaint (ECF No. 1), and the case, are DISMISSED

WITHOUT PREJUDICE. A separate order will be issued accompanying this opinion.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: March 8, 2018