IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RANDOLPH S. KOCH Civil Action No. CV 1:02-1492 (JDS)
Plaintiff,
vs. ORDER MARY SCHAPIRO, Chairman, United States Securities and Exchange Commission,
Defendant.
Presently before the Court is the Defendant’s Motion to Dismiss and, in the alternative,
for Summary Judgment. A hearing was held on April 20, 2010 wherein Plaintiff was represented
by Attorney Ellen Renaud and Defendant was represented by Marina Utgoff Braswell. After
having considered the Parties oral arguments and reviewed the submitted briefs, this Court is
prepared to render a ruling at this time.
FACTUAL BACKGROUND
Plaintiff Randolph Koch began his employ with the U.S. Securities and Exchange
Commission (“SEC”) in December 1991 as a financial analyst. He worked in Branch 16 of the
Page 1 of 22 SEC’s Office of Disclosure and Review (“ODR”). He reported to Frank Donaty, the Chief of
Branch 16. Until 1993, Donaty reported to Carolyn Lewis, Assistant Director of ODR. Donaty
also reported to Gladwyn Goins, the Associate Director of Division Investment Management
(“DIM”), of which ODR was a part of.
In his financial analyst role, Plaintiff’s duties were to review corporate submissions and
registration statements that were provided to the SEC. In addition, because Plaintiff also had a
law degree, he was also asked to provide a limited review of SEC filings from a legal
perspective. Plaintiff alleges that this created a greater workload for him than his fellow
financial analyst colleagues. In 1993, he had discussions with his superiors regarding changing
his personnel classification from a financial analyst to that of a staff attorney position. However,
because the change in classification included a change from competitive service to excepted
service, the classification change would include certain restrictions and a probationary period.
Prior to his employment with the SEC, Plaintiff had suffered a heart attack. At the
beginning of his employ with the SEC, Plaintiff was able to maintain the alleged heavier
workload despite his heart condition. Beginning in 1992, Plaintiff claims that his normal
financial workload in addition to his legal workload began to take a toll on his heart condition.
He informed his superiors of his health issues. He contends that they did not decrease his
workload.
In April or May of 1994, Plaintiff requested that his heart condition be accommodated
and that he be allowed to work on a flexible or “gliding” schedule. In addition, Plaintiff alleges
that prior to their denial of the accommodation, his superiors did not relay his request to human
Page 2 of 22 resources.
One week after Plaintiff’s accommodation request, Plaintiff's superior Frank Donaty
asked Plaintiff to provide medical information from his physician to support his accommodation
requests relating to his heart condition. Plaintiff’s physician, Dr. Kuhn, complied and provided a
letter noting Plaintiff’s history of cardiac disease which included a heart attack, hyperlipidemia
and hypertension. That letter further noted that Plaintiff’s heavy work load and hours put him at
a “high risk of recurrent cardiac events” and recommended that his work load be lightened to
forty hours per week and that it be made to be “more flexible” so that Plaintiff might participate
in a cardiac rehabilitation program. Further, Plaintiff claims that he suffers from sleep apnea
which makes it difficult for him to wake up in the morning.
Donaty responded to Dr. Kuhn’s letter regarding Plaintiff’s health recommendations and
care accommodations. In the letter, Donaty contested Plaintiff’s claim of a heavy workload as
well as concluding that an accommodation was not necessary given the predominantly sedentary
nature of Plaintiff’s work. In addition, Donaty requested that Dr. Kuhn provide additional
information regarding Plaintiff’s medical issues. The record reflects that Dr. Kuhn never
responded to Donaty’s request nor that Plaintiff attempted to procure the requested additional
information. Donaty acknowledges that, contrary to Dr. Kuhn's recommendations, he never
reassigned work for Plaintiff in order to accommodate Plaintiff’s medical conditions. Ultimately,
the Plaintiff's accommodation request was denied.
Goins, Donaty’s supervisor, read Dr. Kuhn’s letter to say that Plaintiff needed an
accommodation because of his “weight problem.” Consequently, he concluded that Plaintiff did
not present any sort of a recognized physical ailment where an accommodation was necessary.
Page 3 of 22 In light of his superiors’ decisions to not provide Plaintiff with a medical accommodation,
Plaintiff began to request use of credit hours, compensatory time and leave time. Plaintiff claims
that Defendant had a policies for compensatory time and credit hours that allowed employees to
earn credit for extra hours at their convenience and then use the credit hours in place of leave.
Plaintiff claims that Defendant impermissibly denied him this option.
During that same period, Plaintiff began to seek counseling from the Equal Employment
Office (EEO) for his denial of promotion/conversion to the GS-13 staff attorney position as well
as denial of an accommodation for his heart condition. He informed his superiors of his intent to
complain regarding this alleged discrimination. He alleges that his decision to engage in this
protected activity (report of discrimination) angered his superiors and they retaliated against him
by, among other things, giving him poor performance evaluations starting in July of 1993. He
also alleges that he received a negative evaluation in May 1994.
The record reflects that from 1993 through 1998, Plaintiff was receiving at least as high
performance evaluations ratings as other financial analysts in his branch. Plaintiff has never
received an unsatisfactory rating.
Also during this same period, Plaintiff was negotiating reassignment from his current
position of financial analyst to that of a GS-13 staff attorney. However, the human resources
office noted that since Plaintiff had no prior legal securities experience, he could not be
converted to a staff attorney unless he serve a year probationary period and relinquish his
M.S.P.B. rights (Merit System Protection Board) for two years and accept a lower starting GS-12
staff attorney position. Plaintiff cites to at least two employees that were excepted from the
probationary and waiver of M.S.P.B. rights requirements. Defendant responds by stating that
Page 4 of 22 those instances were an oversight and do not reflect a policy or norm within the SEC. In
addition, Defendant notes that other financial analysts have accepted offers similar to that offered
to the Plaintiff.
Lastly, in March of 1996, Defendant posted a vacancy announcement for a GS-13
Financial Analyst position in ODR’s Branch 22 office. One of the requirements of the
announcement was that the applicant must have an undergraduate degree in a related field.
Plaintiff complained to the personnel office that the language of the announcement made him
ineligible even though he had a graduate degree in a related field. Personnel agreed and informed
Plaintiff that they would repost the position with the appropriate corrections. However,
according to Plaintiff, although the position was reposted, it was not announced thru the normal
channels. Plaintiff alleges that because Defendant did not post the vacancy announcement
pursuant to its normal procedures, he did not become aware of the posting until the day before
the application was due and therefore did not have sufficient time to complete the application.
Plaintiff’s present discrimination, retaliation and failure to accommodate claims are
brought under the Civil Rights Act of 1964, the Americans with Disabilities Act, the
Rehabilitation Act and the Age Discrimination in Employment Act.
PROCEDURAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell
Page 5 of 22 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. at 1955. The issue on a motion to dismiss is
not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer
evidence to support the claims. Twombly, 550 U.S. at 583 (citing Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)).
When considering a motion to dismiss for failure to state a claim upon which relief can be
granted, the court employs a two-pronged approach. Id. First, the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id.
Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id.
In other words, “a plaintiff must aver in his complaint 'sufficient factual matter, accepted as true,
to state a claim that is plausible on its face.' ” al-Kidd v.Ashcroft, No. 06-36059, 2009 WL
2836448, at *5 (9th Cir. Sept. 4, 2009) (quoting Iqbal,129 S.Ct. At 1949). Courts must accept as
true all facts alleged in the complaint and draw reasonable inferences in favor of plaintiff.
Newcal Indus., Inc. v. Ikon Office Solutions, 513 F.3d 1038, 1043 (9th Cir. 2008).
In the alternative to a motion to dismiss, Defendant seeks summary judgment on
Plaintiff's present claims. Where no genuine dispute exists as to any material fact, summary
judgment is required. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A genuine issue of
material fact is one that would change the outcome of litigation. Id. At 247. “The burden on the
moving party may be discharged by 'showing' – that is, pointing out t the [Court] – that there is
an absence of evidence to support the non-moving party's case.” Sweats Fashions, Inc. v. Pannill
Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987).
Page 6 of 22 Once the moving party has met its burden, the non-movant may not rest on mere
allegations, but must instead proffer specific facts showing that a genuine issue exists for trial.
Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, to avoid
summary judgment here, Plaintiff (as the non-moving party) must present some objective
evidence that would enable the Court to find he is entitled to relief. In Celotex Corp. v. Catrett,
the Supreme Court held that, in responding to a proper motion for summary judgment, the party
who bears the burden of proof on an issue at trial must “make sufficient showing on an essential
element of [his] case” to establish a genuine dispute. 477 U.S. 317, 322-323 (1986). In
Anderson, the Supreme Court further explained that “the mere existence of a scintilla of evidence
in support of the Plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the Plaintiff.” Anderson, 477 U.S. At 252; see also Laningham v.
Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the non-moving party is “required to provide
evidence that would permit a reasonable jury to find” in its favor).
DISCUSSION
Plaintiff brings claims that he has been discriminated against because of (1) his Jewish
ethnicity; (2) his heart condition; (3) the fact that he is over 40 years old; and (5) his complaints
to the Equal Employment Office. Presently before the Court is the Defendant’s combined
Motion to Dismiss and Motion for Summary Judgment.
Motion to Dismiss
Defendant contends that this Court lacks jurisdiction over many of Plaintiff’s claims
Page 7 of 22 because he has failed to exhaust these claims at the administrative level before bringing them
before this Court. Defendant contends that a plaintiff may not raise, for the first time, a claim in
district court that was not raised in an administrative complaint or reasonably related to a charge
raised administratively. Park v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995).
These administratively unaddressed claims include non-selection for attorney positions,
poor performance evaluations, failure to grant leave requests under FMLA, failure to grant sick
leave, placement of restrictions on leave, adverse employment actions related to being assigned
more work, assignments that were inconsistent with his job description, and failure to provide
adequate information regarding conversion from one job title to another.
Defendant claims that the above-stated claims were not raised at the administrative EEOC
review level and therefore has failed to exhausted his administrative remedies and thus his
present claims are statutorily barred.
In his response brief, Plaintiff does not dispute any of these claims. Thus, the Court can
find that they have merit and grant a motion to dismiss on these issues.
Motion for Summary Judgment
Plaintiff has stepped away from most of his claims choosing rather to focus on the four
following claims: (1) heavy workload; (2) refusal to accommodate Plaintiff’s disability; (3) non-
promotion to a higher position; and (4) reclassification to staff attorney position.
1. HEAVY WORKLOAD
Plaintiff alleges that because he asked for medical accommodations and threatend to file
Page 8 of 22 an EEOC complaint, his increased workload constituted an adverse action. Further, Plaintiff
contends that Defendant has failed to articulate any legitimate reason for Plaintiff’s
comparatively heavier workload. Consequently, Plaintiff contends that because of Defendant’s
alleged “silence” on the issue, Plaintiff has established a prima facie case of discrimination.
To establish a prima facie case of discrimination, Plaintiff must show that (1) he is a
member of a protected class; (2) he suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446,
452 (D.C. Cir. 1999). To establish the third and final element of his prima facie case, the
plaintiff must draw some nexus between the first two elements from which the fact-finder could
infer discriminatory purpose. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). Plaintiff
has the initial burden of proving by a preponderance of the evidence a “prima facie” case of
discrimination. Id.
Plaintiff contends that he has met the first prong of protected class because he is of
Jewish ethnicity and disabled. He contends that the adverse action at issue is Defendant’s
assignment to him of a heavier workload than that of his co-workers. Specifically, Plaintiff
alleges that he reviewed 40% more registration statements than his colleagues over the course of
a four year period and that his 1993-1995 performance evaluations stated that he handled an
above average amount of filings. Lastly, Plaintiff contends that he was met the last prong of
discrimination because he was treated less favorably than his co-workers that were not in his
protected class.
Defendant refutes the Plaintiff’s claim of a heavier workload by citing to portions of his
deposition wherein he concedes that the number of registrations reviewed does not necessarily
Page 9 of 22 reflect a greater amount of work performed. Rather the amount of work involved in each level
of registration review varies. Further, Defendant contends that Plaintiff has failed to present
evidence of the depth of review he performed as compared to that of his co-workers. Lastly,
financial analysts like Plaintiff had other work duties in addition to reviewing registration
statements. Plaintiff concedes that he does not know the extent of those other work duties
performed by his co-workers.
At best, Plaintiff’s claims of a heavier workload are subjective. Such subjective belief is
insufficient to survive summary judgment. Mills v. First Fed. Sav. & Loan Ass’n of Belvidere,
83 F.3d 833, 841-42 (7th Cir. 1996). Even if Plaintiff had direct evidence of a heavier workload,
harder work assignments do not constitute an adverse employment action. Johnson v. Cambridge
Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (noting that plaintiff’s claim that he was given
harder work assignments failed to “show some quantitative or qualitative change in the terms or
conditions of his employment that [was] more than a mere subjective preference”).
An adverse action in the discrimination context is a “significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits.” Douglas v. Donovan, 559
F.3d 549, 552 (D.C.Cir.2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003)). It
is not out of the ordinary for employees to have been expected to shoulder an extra load on
occasion, or to have been asked to step in if there were unexpected staff shortages. Brodetski v.
Duffey, 141 F.Supp.2d 35, 45 (D.D.C.,2001). Moreover, “a materially adverse change in terms
and conditions of employment must be more disruptive than . . . an alteration of job
responsibilities.” Id. (citing Crady v. Liberty Nat’l Bank & Co. Of Ind., 993 F.2d 132, 136 (7th
Page 10 of 22 Cir. 1993)). Lastly, it is not the place of courts to review every task that management assigns to
employees. Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1556 (D.C.Cir.1997). The fact
that a plaintiff has more work on occasion than another does not give rise to a materially adverse
action. In addition, given Plaintiff’s concession regarding the registration statements and the fact
that Plaintiff is not aware of the extent of his similarly-situated co-worker’s workload, his claims
of a heavier workload are subjective at best.
Moreover, because Plaintiff has already conceded that his alleged adverse employment
action of increased workload was due, in large part if not entirely, to his legal expertise, he
cannot establish a causal nexus between being in a protected class and Defendant’s alleged
adverse employment action. McDonnell Douglas, 411 U.S. at 802. As such, this Court
concludes that Plaintiff has failed to establish a prima facie case that he suffered an advese action
of heavier workload. Defendant’s Motion for Summary Judgment on this ground is GRANTED.
In addition, Plaintiff claims that the heavier workload was in retaliation for his initiation
of EEO activity. To establish a prima facie claim of retaliation, Plaintiff must show that (1) he
engaged in a statutorily protected activity; (2) a reasonable employee would have found the
challenged action materially adverse in that it may have deterred him from complaining of
discrimination; and (3) there existed a causal connection between the protected activity and the
materially adverse action. Burlington Northern v. Santa Fe Ry. Co. v White, 126 S.Ct. 2405,
2415-16 (2006).
In the instant case, Plaintiff’s protected activity was the initiation of the Equal
Employment activity. Plaintiff contends that the adverse action arising from this was an
increased workload. Lastly Plaintiff contends that the adverse action were directly related to
Page 11 of 22 Plaintiff’s initiation of his EEO activity and request for an accommodation.
The record reflects that Plaintiff first began making claims of a heavier workload in 1992
and stated that his workload became oppressive in February and March of 1994. However, the
record also reflects that he did not initiated his EEO activity in April of 1994. Since his claims of
a heavier workload began well before he initiation of EEO activity, Plaintiff cannot now claim
that the alleged increase workload was a retaliatory response by Defendant. Moreover, in order
to establish an adverse action, plaintiff must reasonably demonstrate that he suffered “materially
adverse consequences affecting the term, conditions, or privileges of [his] employment.” Brown,
199 F.3d at 457. A “materially adverse” action constitutes actions such as “hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Id. at 456.
Regarding Plaintiff’s alleged claim of an increased workload, beyond the cases already
cited, courts have held that “minor changes in work-related duties or opportunities do not
constitute actionable injury unless accompanied by an adverse change in terms, conditions or
privileges of employment.” Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002). Further,
“mere inconvenience and alteration of job responsibilities will rise to the level of adverse
action.” Id.
Here, Plaintiff’s allegations of a workload increase began in 1992 through February and
March 1994. This is well before his initiation of EEO activity in April 1994 and therefore cannot
be considered a retaliatory action. In addition, without evidence of the workload of Plaintiff's
similarly-situated colleagues to compare against, he cannot make a prima facie claim of
discrimination. Further, Plaintiff has failed to establish that any alleged increase in work
Page 12 of 22 constituted an adverse change in the terms, conditions or privileges of Plaintiff’s employment.
Lastly, because Plaintiff has also conceded that his heavier workload was due in large part, if not
entirely, to his additional legal expertise, he cannot establish a causal connection between the
protected activity and the materially adverse action. Defendant's Motion for Summary Judgment
on this ground is GRANTED.
2. REFUSAL TO ACCOMMODATE DISABILITY
Next, Plaintiff alleges that Defendant failed to engage in the “good faith interactive
process” regarding his request for (1) an accommodation of reduced hours and to go to cardiac
rehabilitation and (2) a flexible schedule accommodation.
The Rehabilitation Act requires that an agency must make reasonable accommodation to
the “known physical and mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless [the employer] can demonstrate that the accommodation
would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A); Barth v. Gelb, 2 F.3d 1180,
1183 (D.C.Cir.1993). An individual is entitled to the protections of the Rehabilitation Act if he
can establish that he is a qualified person with a disability; that he can perform the essential
functions of his job with or without reasonable accommodation; and either that his employer
failed to reasonably accommodate his disability or that he was terminated due to her disability.
Barth, 2 F.3d at 1186.
“Because the interactive process is not an end in itself, it is not sufficient for [the
employee] to show that the [employer] failed to engage in an interactive process or that it caused
the interactive process to break down. Rather, [the employee] must show that the results of the
Page 13 of 22 inadequate interactive process was the failure of the [employer] to fulfill its role in ‘determining
what specific actions must be taken by an employer’ in order to provide the qualified individual a
reasonable accommodation.” Rehling v. City of Chicago, 207 F.3d 1009, 1015-1016 (7th Cir.
2000) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)). The
interactive process begins when an employee requests an accommodation. Once this process has
begun, both the employer and the employee have a duty to act in good faith. Conneen v. MBNA
America Bank, N.A., 334 F.3d 318, 333 (3rd Cir. 2003).
Regarding the accommodation request, this Court concludes that Defendant did in fact
engage in the good faith interactive process. After Plaintiff made a request for accommodation
for his heart condition, Donaty sent a letter to Plaintiff’s doctor requesting information regarding
the nature of his heart condition and the type of accommodations desired. After Plaintiff’s doctor
responded, Donaty sent another letter requesting additional information. Plaintiff’s physician,
Dr. Kuhne did not respond to the request. In addition, the record reflects that Plaintiff made no
attempt to procure the requested additional information. Absent some tangible effect on the
employee's terms and conditions of employment or other material harm, an employer's request
for medical documentation for the purpose of assessing an employee's credibility or determining
an appropriate accommodation is not an adverse employment action. Dage v. Johnson, 537
F.Supp.2d 43, 63-64 (D.D.C.2008). Given that it was ultimately the Plaintiff that failed and/or
ended the good faith interactive process to determine the feasibility of the accommodation, this
Court concludes that Defendant did not violated the Rehabilitation Act. Defendant's Motoin for
Summary Judgment on this ground is GRANTED.
Regarding the flexible/gliding schedule, the request arose from Plaintiff suffering from
Page 14 of 22 sleep apnea which made it difficult for him to wake up in the morning and thus arrive to work in
a timely manner. In this instance, Plaintiff acknowledges that Defendant did in fact engage in the
interactive process.
Defendant had Plaintiff visit an occupational health physician that examined him
regarding his sleep apnea ailment. The physician wrote a letter that stated that Plaintiff did in fact
have sleep apnea and could not be expected to arrive at work dependably before 11 a.m.
However, that same physician, subsequently wrote another letter, clarifying the severity of
Plaintiff's sleep apnea, stating that it varied from day to day, but he predicted that Plaintiff should
be able to arrive to work on most days between 9:30 and 10:00 a.m.
Plaintiff requested an accommodation of allowing him to arrive at work by 11:00 a.m.
Based on the physician's recommendations, Defendant offered the accommodation that Plaintiff
could arrive at work between 9:30 and 10:00 a.m. In addition, the record reflects that Defendant
offered Plaintiff a start time as late as 10:30 a.m. Plaintiff claims that the 10:00 a.m. start time
counteroffer did not reflect the reality of his medical needs and he rejected the accommodation.
However, Defendant's Statement of Material Facts reflect that the Plaintiff did accept the 10:30
a.m. start time.
Given that the Defendant offered to accommodate Plaintiff's sleep apnea ailment by
allowing him a flexible/gliding schedule to come in between 9:30 and 10:30 a.m., this Court
concludes that Defendant has engaged in the good faith interactive process. Moreover, the record
reflects that Plaintiff accepted the 10:30 a.m. start time. For the foregoing reasons, Defendant's
Motion for Summary Judgment on this ground is GRANTED.
Lastly, to the extent that Plaintiff alleges that Defendant impermissibly denied his request
Page 15 of 22 to work from home for some amount of his work hours, Defendant notes that the SEC does not
offer that option. Homburg v. UPS, Inc., 2006 WL 2092457, at *9 (D.Kan. July 27, 2006);
Grube v. Lau Indus. Inc., 257 F.3d 723, 728 (7th Cir.2001). In addition, Plaintiff failed to raise
this claim at the administrative EEO level and may not raise it here.
Here, the record clearly reflects that Defendant did in fact engage in the good faith
interactive process with the Plaintiff in order to reach an accommodation. The record further
reflects that Plaintiff refused to comply with Defendant's additional requests for information or
refused the accommodations offered. Defendant's Motion for Summary Judgment on this ground
is GRANTED.
3. RETALIATION AND DISCRIMINATION BASED ON REFUSAL OF PROMOTION/CONVERSION
Plaintiff contends that he was discriminated against based on his race, age and disability
and/or retaliated against for engaging in EEO activity when Defendant refused to promote him
and/or convert him to a GS-13 staff attorney position unless he waive his Merit System
Protection Board (M.S.P.B.) rights and serve a one-year probation. Plaintiff acknowledges that
he rejected the Defendant’s offer to convert him to a GS-12 staff attorney position with above
restrictions.
Generally, to establish a prima facie case of discriminatory or retaliatory non-selection or
failure to promote, plaintiff must show that (1) he is a member of a protected class; (2) he applied
for and was qualified for an available position; (3) despite his qualifications, he was rejected; and
(4) either someone filled the position or it remained vacant and the employer continued to seek
applicants. Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir. 2006). However, prima facie
Page 16 of 22 factors fall by the wayside once defendant articulates a legitimate, non-discriminatory and/or
non-retaliatory reason for its action. Brady, 520 F.3d at 493-94.
Defendant cites to its policy requiring any employee converting from the competitive
service to exceptive service (which the GS-12 and GS-13 positions were) to serve a one-year
probation period and complete two years of service without M.S.P.B. rights. Plaintiff contends
that because he knows of at least two other employees that were excepted from this requirement,
the Defendant must be discriminating or retaliating against him. Defendant Donaty
acknowledges those two instances were oversights and were the exception rather than the norm.
Moreover, Plaintiff does not dispute that aside from the two aformentioned instances, there were
financial analysts before and after him that were offered and accepted the conditioned conversion
to staff attorney.
In addition, Plaintiff cites to 5 U.S.C. § 7511(a)(1)(c)(ii) which permits an employee
“who has completed 2 years of current continuous service in the same or similar positions in an
Executive agency under other than a temporary appointment limited to 2 years or less” to convert
to an excepted service position without waiving their M.S.P.B. rights. Here, Plaintiff argues that
his duties from his current financial analyst position to the desired GS-13 Staff Attorney position
require the “same or similar” duties in light of the additional legal duties he took on because of
his legal background. Moreover, Plaintiff contends that in light of his legal background, he is
already reviewing documents from a legal perspective. In support, he cites to Supervisor
Donaty’s alleged statement that although Plaintiff did not hold a staff attorney title, he did
perform the same duties as his attorney colleagues. Regardless of this, Plaintiff contends that
Defendant, through his supervisor Goins and Donaty, denied his conversion to a GS-13 staff
Page 17 of 22 attorney position without waiver of M.S.P.B. rights and without waiver of the probationary
period.
The record reflects that Donaty sought for Plaintiff to be converted to GS-13 attorney
position. However, because personnel concluded that Plaintiff did not have the requisite
securities experience, Donaty revised his recommendation to a GS-12 staff attorney position.
Plaintiff was offered the GS-12 position and asked to sign the agreement to waive M.S.P.B.
Rights and accept a probationary period on June 3, 1994. Personnel further informed Plaintiff
that if he accepted the GS-12 staff attorney position, he could be promoted to GS-13 after six
months. Personnel went on to state that because the GS-12 attorney position was an excepted
service position, Plaintiff would have to waive his M.S.P.B. rights for two years and accept a
one-year probationary period.
Here, the record reflects that Plantiff was in fact offered the GS-12 attorney position,
albeit with a waiver of M.S.P.B. rights and probationary period. Moreover, Defendant has
presented evidence that it was the SEC's policy to require all GS-12 attorneys to serve a one-year
probationary period and waive two years of M.S.P.B. rights. In addition, Defendant has
presented evidence that, with the exception of the persons cited by Plaintiff, financial analysts
that were similarly-situated to Plaintiff, had before and after Plaintiff, accepted conversions to
staff attorney positions with the same restrictions as those offered to Plaintiff.
As such, Plaintiff has failed to show how he was retaliated against when he was in fact
offered the GS-12 attorney position. Moreover, because other similarly-situated persons were
To the extent Plaintiff is alleging that he should have been offered the GS-13 attorney position, the record reflects that Plaintiff did not have the required legal securities experience to qualify for the GS-13 position. As such, this Court concludes that Defendant has a non-discriminatory reason for not offering Plaintiff that position.
Page 18 of 22 required to accept the same restrictions in order to convert, Plaintiff has failed to show that
Defendant discriminated against him by requiring him to accept those same requirements as well.
Next Plaintiff argues that his present financial analyst position in conjunction with his
additional legal duties is substantially similar to a GS-13 staff attorney position that,under 5
U.S.C. § 7511(a)(1)(c)(ii), he need not waive his M.S.P.B. rights nor accept a probationary
Merely because Plaintiff performs some duties that staff attorneys perform in his present
position, does not mean that he performs all the duties that staff attorneys perform. Thus, just
because he performs some legal duties in light of his legal background should not automatically
qualify him to convert his present financial analyst position to that of a GS-13 staff attorney.
Additionally, Donaty’s statements regarding Plaintiff’s legal qualifications were specifically
limited to the GS-12 position and not the GS-13 position.
To the extent Plaintiff contends that the failure to convert him was in retaliation to his
filing of an EEO Complaint, the record reflects that his request to convert from a financial
analyst to a staff attorney occurred in November 1993 and the request to accept the probationary
period for the GS-12 attorney position occurred in June 1994. This all occurred before Plaintiff
filed his EEO Complaint and thus cannot be relied on to establish a retaliation claim.
For the foregoing reasons, Defendant's Motion for Summary Judgment on this ground is
GRANTED.
Page 19 of 22 4. DISCRIMINATION AND RETALIATION FOR DENIAL OF PROMOTION TO GS-13 FINANCIAL ANALYST
Plaintiff contends that Defendant intentionally kept him from applying for a GS-13
Financial Analyst position in March 1996. Specifically, Plaintiff contends that they placed
invalid criterion in the original GS-13 financial analyst position that made him ineligible.
Specifically, the invalid criterion was that an undergraduate degree in a related field was
required. Since Plaintiff had a graduate degree in a related field, he alleges that it would have
invalidated him for the position. Plaintiff brought the invalid criterion to personnel’s attention
and they informed him that they would repost the position with the corrected criterion.
Plaintiff contends that when the position was reposted with the correct criterion, it was
not posted in the normal places nor was it posted following the usual procedures. Plaintiff
contends that he discovered the posting the day before the deadline and was unable to apply for
it.
To show retaliation in failure to promote, Plaintiff must present prima facie evidence that
(1) he is a member of a protected class; (2) he applied for and was qualified for an available
position; (3) despite his qualifications, he was rejected; and (4) either someone filled the position
or it remained vacant and the employer continued to seek applicants. Holcomb v. Powell, 433
F.3d 889, 895 (D.C.Cir. 2006).
It is undisputed that Plaintiff never applied for the position. However, case law has
reflected that failure to apply for a position does not bar a Title VII claim so long as plaintiff
made every reasonable effort to convey his interest in the job. E.E.O.C. v. Metal Serv. Co., 892
F.2d 341, 348 (3rd Cir. 1990). Moreover, an employer’s failure to make its employees aware of
Page 20 of 22 vacancies makes the application requirement more relaxed an the employee shall be treated as
having applied. Furnco Constr. Corpt. v. Waters, 438 U.S. 567, 577 (1978).
Plaintiff contends that the SEC noticed his interest in the position and their failure to
broadly disseminate the corrected posting implicates discrimination and retaliation. However,
Plaintiff concedes that he received an email informing him that the position at issue was being
reposted. As such, Plaintiff was on notice that the vacancy announcement was to be reposted -
not the vacancy posting itself, just the fact that it would be reposted.
Defendant does not dispute that the posting did not occur in the usual places nor was it
posted through the usual procedures. However, to the extent that Plaintiff claims that he is being
discriminated or singled out, he fails to point to any evidence that he was treated differently than
other persons that were interested in the position but received no notice. Plaintiff claims that the
email posting was never mailed to his division. Consequently, others in his division similarly-
situated to him did not receive knowledge of the posting and, if at all, were equally prejudiced.
As such, Plaintiff cannot establish that he was singled out and discriminated against.
To the extent Plaintiff claims that he only found out of the re-posting the day before it
closed, Plaintiff already knew via email that the posting was to occur and hence could have been
preparing for it prior. Additionally, Plaintiff could have sought additional time to complete the
application but chose not to. As such, no one at the SEC was aware, much less on notice, of
Plaintiff’s interest in the position. Lastly, Plaintiff has presented no evidence that anyone at the
SEC who prepared the vacancy announcement had any knowledge of Plaintiff in any manner as
to raise an inference of discrimination.
For the foregoing reasons, Defendant's Motion for Summary Judgment on this ground is
Page 21 of 22 CONCLUSION
Because this Court concludes that Plaintiff cannot meet the elements of his claims under
the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act and the Age
Discrimination in Employment Act, for the foregoing reasons, IT IS HEREBY ORDERED that,
Defendant's Motion to Dismiss or, in the alternative, Motion for Summary Judgment
(Doc. #93) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court enter Judgment in favor of the
The Clerk of Court shall notify the Parties of the making of this Order.
DATED this 6th day of January, 2011.
/s/Jack D. Shanstrom Jack D. Shanstrom Senior U.S. District Judge
Page 22 of 22