Velasco v. McCarthy

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
FRANCISCO VELASCO III,
Plaintiff,
vs.
JOHN E. WHITLEY, ACTING
SECRETARY, DEPARTMENT OF
THE ARMY,
Defendant.
Case No. 3:20-cv-00010-RRB
ORDER REGARDING
MOTION TO DISMISS
Docket 16
INTRODUCTION
Plaintiff, Francisco Velasco III, alleges various acts of discrimination and
harassment during his seven-month employment as a civilian Department of the Army
Installation Management Specialist, including improper touching and comments by various
coworkers. 	He filed a pro se Second Amended Complaint alleging Hostile Work
Environment (Count I), Retaliation (Count II), Reprisal in Violation of Whistleblower Act
(Count III), Violation of Privacy Act (Count IV), Disparate Impact (Count V), and
Conspiracy Against Rights (Count VI).1 	In lieu of an Answer, the government filed a
1 Docket 5.
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Motion to Dismiss all six counts.2 	Plaintiff, who now is represented by counsel, has
conceded to dismissal of Counts III, IV, V, and VI.3 This Court accordingly considers the
government’s Motion to Dismiss as to Counts I and II, alleging “a hostile work
environment that discriminated against him on the basis of race, color, national origin and
gender,” and retaliation for opposing such discrimination, both in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C.§2000e et seq.
FACTS
Plaintiff was employed by the U.S. Army at Fort Wainwright, Alaska, as a
GS-7 Installation Management Specialist from July 2018 through February 2019. He was
removed prior to the end of his probationary period.4 	Plaintiff “believed that his
termination formed the basis for a Title VII claim, but he did not want to file his EEO
Complaint in Alaska. Instead, he contacted the EEO Compliance and Complaints Review
[“EEOCCR”] . . . director in Virginia to begin his informal complaint process.”5 	On
March 27, 2019, the Fort Wainwright office sent Plaintiff a Notice of Right to File a Formal
Complaint of Discrimination, giving him 15 days to file a formal complaint.6 He received
the letter on April 8, 2019, mailed his formal complaint to the Virginia office the next day,
and it was received on April 12, 2019.7 	The Virginia office then forwarded the formal
complaint to the Fort Wainwright office, which was received on April 24, 2019.8
2 Docket 16.
3 Docket 19 at 2–3.
4 Docket 5 at 3, ¶ 12.
5 Docket 19 at 4, citing Docket 16-5 at 6.
6 Id. at 5, citing Docket 16-5 at 1.
7 Id. (citations omitted).
8 Id.
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Plaintiff alleges some “confusion” between the Fort Wainwright EEO office
and the office in Virginia,9 and email correspondence in the record indicates that in March
and April of 2019, Plaintiff declined to cooperate with the local office because he believed
the EEOCCR in Virginia should have been processing the formal complaint.10 Ultimately,
on June 11, 2019, the Fort Wainwright office dismissed the formal complaint as untimely,
concluding that it should have arrived at its office, rather than the Virginia office, within
15 days.11 	The Fort Wainwright office also made alternative findings, dismissing three
specific complaints by Plaintiff for failure to state a claim.12
Plaintiff appealed this dismissal to the Office of Federal Operations (OFO),
which ultimately agreed with Plaintiff that he had complied with the 15-day deadline.13
The November 2019 OFO decision also concluded that the three specific claims were
improperly dismissed on the merits.14 	The OFO decision remanded the matter to the
Agency for “further processing” of the complaint, but also stated: “However, if you wish
to file a civil action, you have the right to file such action in an appropriate United States
District Court within ninety (90) calendar days from the date you receive this decision.”15
9 Id.
10 Docket 16-3 at 2. These emails reflected a perceived lack of understanding by Plaintiff that the
Fort Wainwright office was part of the process. 	T he government now alleges that the Fort Wainwright
office asked “follow up questions,” which Plaintiff declined to answer, but no reference was made to a lack
of cooperation in the letter sent to Plaintiff by the Fort Wainwright office on May 15, 2019, and the
November 6, 2019, OFO Decision makes no reference to a lack of cooperation by Plaintiff. The June 11,
2019, Agency decision is not found in the record before this Court.
11 Docket 19 at 6, citing Docket 16-7 at 1.
12 Docket 16-7 at 3.
13 Id.
14 Id.
15 Id. at 6 (emphasis original).
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Apparently relying on this language, Plaintiff filed this lawsuit within the ninety-day
window.
DISCUSSION
The government seeks dismissal of Counts I and II, arguing that Plaintiff
failed to exhaust his administrative remedies when he failed to cooperate with the EEO
investigator, who “tried to contact Plaintiff many times by email and phone in order [to]
interview Plaintiff” about his complaint, but “Plaintiff refused.”16 	Plaintiff allegedly
“repeatedly refused to cooperate [with the EEO investigation], impeded the processing and
investigation of his claim, and prevented the agency from being able to come to any
decision on the merits before he abandoned the administrative process entirely to pursue
his claim in federal court.”17 The government argues that a plaintiff “fails to exhaust the
administrative process whether he formally abandons the process, or merely fails to
cooperate, because cooperation is an essential component of the administrative process.”18
Plaintiff’s failure to cooperate, the government argues, is a failure to exhaust administrative
remedies, requiring dismissal by this Court for lack of jurisdiction.19
In response, Plaintiff argues that he has “fully and completely exhausted his
administrative remedies and filed his complaint based on direct instructions from the U.S.
Equal Employment Opportunity Commission, Office of Federal Operations,” as outlined
in the facts above.20 He takes issue with the government’s argument equating “failure to
16 Docket 16 at 25.
17 Id. at 23.
18 Id.
19 Id. at 26.
20 Docket 19 at 4, citing Defense exhibit at Docket 16-7.
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cooperate” with “failure to exhaust,” arguing that they are not interchangeable given the
facts of this case.21
The government replies that nothing about the facts of this case excuses
Plaintiff 	from 	cooperating 	with 	the 	investigation 	as 	a 	requirement 	to 	exhaust 	his
administrative remedies; the EEOC’s reversal of the agency’s finding regarding timeliness
does not excuse Plaintiff’s failure to exhaust upon remand; and the EEOC’s boilerplate
notification regarding the deadline for filing suit in federal court does not waive the
requirement of exhaustion.22
OFO Director Haden’s November 6, 2019, Decision clearly states that
Plaintiff’s formal complaint was timely filed.23 Moreover, the Order describes Plaintiff’s
options going forward, which included a number of possible routes. First, the Agency was
directed to acknowledge to the Plaintiff within 30 days that it received the remanded
claims, and to provide Plaintiff with a copy of the investigative file and a notification of
his rights within 150 days.24 Guidance was included in the event that the Agency did not
comply with the Commission’s order, including asking the Commission to enforce the
order, or filing a civil suit. 	“Alternatively, the Complainant has the right to file a civil
action on the underlying complaint in accordance with the paragraph below . . . .25 The
relevant “paragraph below” elaborates as follows:
This 	is 	a 	decision 	requiring 	the 	Agency 	to 	continue 	its
administrative processing of your complaint. However, if you
21 Id. at 9.
22 Docket 20.
23 Docket 16-7.
24 Id. at 4.
25 Id. (emphasis added).
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wish to file a civil action, you have the right to file such action
in an appropriate United States District Court within ninety
(90) 	calendar 	days 	from 	the 	date 	that 	you 	receive 	this
decision. 	In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you
filed your complaint with the Agency or filed your appeal with
the Commission. . . . Filing a civil action will terminate the
administrative processing of your complaint.26
Although the government suggests that this language is mere boilerplate, upon which
Plaintiff should not have relied, this final sentiment is reinforced elsewhere in the OFO’s
order, in boldface type: 	“If the Complainant files a civil action, the administrative
processing 	of 	the 	complaint, 	including 	any 	petition 	for 	enforcement, 	will 	be
terminated.”27
The Code of Federal Regulations explains that a complainant “is authorized
under title VII, . . . to file a civil action in an appropriate United States District Court . . .
Within 90 days of receipt of the Commission's final decision on an appeal.”28 Plaintiff has
done precisely this. Moreover, “[f]iling a civil action under § 1614.407 . . . shall terminate
Commission processing of the appeal.”29
Despite the government’s arguments to the contrary, Plaintiff exhausted his
administrative remedies. The Fort Wainwright office considered, and rejected, Plaintiff’s
formal complaint, and issued an opinion accordingly. 	Plaintiff appropriately pursued an
appeal through the OFO. The OFO’s decision provides guidance to the Agency on remand,
but Plaintiff has the option under the CFR to take an appeal directly to the District Court.
26 Id. at 6 (emphasis original).
27 Id. at 5 (emphasis original).
28 29 C.F.R. § 1614.407(c).
29 29 C.F.R. § 1614.409.
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CONCLUSION
In light of the foregoing, the Motion to Dismiss at Docket 16 is GRANTED
IN PART and DENIED IN PART. The motion is denied as to Counts I and II. Counts III,
IV, V, and VI are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED this 2nd day of June, 2021, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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