1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

TIMOTHY V. KELLY,

Plaintiff,

v.

GINA RAIMONDO, Secretary of United 

States Department of Commerce,

Defendant.

Civil Action No. 20-3203 (RDM)

MEMORANDUM OPINION AND ORDER

Plaintiff Timothy V. Kelly, proceeding pro se, brings this action under the Rehabilitation 

Act of 1973, 29 U.S.C. § 701 et seq., as well as several other federal laws, against the Secretary 

of Commerce (“the Department”).

1 He asserts a host of claims related to his employment at and 

termination from the National Telecommunications Information Administration (“NTIA”), a 

component of the Department. Dkt. 9 (Am. Compl.). The Department moves to dismiss most, 

but not all, of these claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. 15 at 1. 

According to the Department, Kelly failed to assert certain claims administratively and

abandoned others during the administrative process. Id. at 1. 

1 Kelly’s initial complaint named as Defendants not only the Secretary of Commerce, but also 

two of Kelly’s supervisors, Laura Dodson and Douglas Kinkoph. Dkt. 1 at 2 (Compl.). His 

amended complaint, however, names only the Secretary. Dkt. 9 at 1 (Am. Compl.). To the 

extent that Kelly still asserts claims against Dodson and Kinkoph, those claims are hereby 

DISMISSED. “Under the Rehabilitation Act . . . only the heads of federal agencies in their 

official capacity may be sued, not their individual employees.” Williams v. Brennan, 285 F. 

Supp. 3d 1, 7 (D.D.C. 2017) (internal quotation marks omitted). 
2

For the following reasons, the Court will GRANT the Department’s motion in part and

DENY it in part. 

I. BACKGROUND

For purposes of resolving the Department’s motion, the Court “assume[s] the truth of all 

material factual allegations in the complaint” and “construe[s] the complaint liberally, granting 

the plaintiff the benefit of all inferences that can be derived from the facts alleged.” Am. Nat’l 

Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal quotation marks omitted). In 

addition, because Kelly is proceeding pro se, the Court holds his pleadings “to less stringent 

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). And for that same reason, the Court treats 

the attachments Kelly submitted along with his complaint as part of the complaint. See 

Crawford v. Duke, 867 F.3d 103, 108 (D.C. Cir. 2017). Kelly’s complaint in this action is light 

on context, so the following facts are drawn in significant part from his attachments, in particular 

an administrative complaint he appears to have filed with the Equal Employment Opportunity 

Commission (“EEOC”), Dkt. 9 at 14–21 (EEOC Compl.), and an appellate decision of the 

EEOC’s Office of Federal Operations (“OFO”), id. at 23–29 (“OFO Decision”).

A. Factual Background

Kelly is a disabled veteran. Id. at 16 (EEOC Compl. ¶ 16). He suffers from hearing loss 

with tinnitus and spinal abnormalities. Id. at 16–17 (EEOC Compl. ¶¶ 19, 22). These disabilities 

impair his ability to communicate in certain respects and substantially limit his mobility, but he 

is able to overcome them in the workplace with the aid of accommodations, including 

communications devices and specialized orthopedic equipment. Id. at 17 (EEOC Compl. ¶¶ 20–
3

24). In 2010, Kelly began working at NTIA as a Communications Program Specialist. Id. at 16 

(EEOC Compl. ¶ 13). 

According to the complaint, Kelly’s supervisors engaged in series of discriminatory 

actions against him beginning in 2014 and culminating in his removal in 2017. Id. at 4–5 (Am. 

Compl.). Kelly alleges that in September 2014 and without consulting him first, the Department 

temporarily cancelled his access to Call Bridge, “an audio, video, and conference system” 

service that previously had been provided to him as a reasonable accommodation related to his 

hearing loss. Id. at 27 (OFO Decision at 5 n.2); see also id. at 4 (Am. Compl.); id. at 19 (EEOC 

Compl. ¶ 39). Several months later, Kelly’s iPhone, which had also been provided to him as a 

reasonable accommodation, broke down, but the Department declined to replace it, instead 

directing Kelly to “try to fix” it with the assistance of the NTIA help desk. Id. at 4–5 (Am. 

Compl.). And in May 2016 the Department authorized Kelly to receive a lightweight laptop as 

an accommodation for his spinal disabilities, but several weeks later his supervisor cancelled that 

accommodation. Id. at 4–5 (Am. Compl.); id. at 19 (EEOC Compl. ¶ 42). 

Kelly also alleges that the Department removed or denied several reasonable 

accommodations related to his teleworking arrangement. He avers that in October 2015 the 

Department began to cut back in some way on his ability to telework full-time, an 

accommodation provided to him in 2014. Id. at 4–5 (Am. Compl.). According to Kelly, his 

2014 telework policy was contained in a memorandum, and the Department never updated this 

memorandum for 2016. Id. at 4–5. Although Kelly does not elaborate on the consequences of 

this inaction and the extent which his ability to telework was reduced in practice, it appears that 

by mid-2016 he was working in person, at least some of the time. See id. at 4–5 (Am. Compl.); 

id. at 19 (EEOC Compl. ¶ 41). After he began commuting, Kelly requested a 6:00 a.m. to 2:30 
4

p.m. in-person shift, so that he could avoid rush-hour traffic, which poses “potential hazards for 

exacerbating his symptoms.” Id. at 17, 19 (EEOC Compl. ¶ 23, 41); id. at 4–5 (Am. Compl.). 

But the Department denied this request. Id. at 19 (EEOC Compl. ¶ 41); Id. at 5 (Am. Compl.).

Separate from these reasonable accommodation incidents, Kelly describes numerous 

instances in which his supervisors allegedly cited him with false charges for being away without 

leave (“AWOL”). He was first marked as AWOL on January 27, 2016, but he maintains that he 

was teleworking that day and was not absent. See id. at 4 (Am. Compl.); see also id. at 19 

(EEOC Compl. ¶ 40). He received another AWOL charge on December 9, 2016 for being away 

for approximately 40 hours on what he describes as approved sick-leave. Id. at 4. And he was

issued a further charge for his absence on March 17, 2017, this time while he was taking unpaid

leave to which he was allegedly entitled as a disabled veteran. Id. at 4; id. at 19 (EEOC Compl. 

¶ 44). According to Kelly, despite his justifications for these alleged absences, his supervisors 

failed to “engage [him] in dialogue” prior to issuing charges and refused to discuss the charges

with him after the fact. Id. at 5 (Am. Compl.); id. at 19 (EEOC Compl. ¶ 44).

The discriminatory treatment Kelly received extended to his opportunities for career 

development and advancement. In particular, Kelly asserts that he was wrongfully denied an 

opportunity to compete for a promotion. Id. at 4 (Am. Compl.). The details of what happened 

are sparse, but it appears that a “GS-15 Supervisory Tenured position” became available in 2015. 

Id. For reasons that are hard to discern, Kelly, a career-status employee at the GS-14 level, was 

asked to withdraw his name from consideration for the role. Id. at 4. (Am. Compl.); id. at 16 

(EEOC Compl. ¶ 13). Several months later, a “term conditional” employee was promoted 

instead. Id. at 4. (emphasis omitted). Kelly does not explain this charge in further detail, but the 

Court infers Kelly’s position to be that he was asked to withdraw his application for a 
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discriminatory or otherwise wrongful reason. Around this same time, Kelly was also issued a 

“letter of caution” about his performance after a call in which his supervisor was supposed to 

review his 2016 performance plan with him. Id. at 4 (Am. Compl.); see id. at 19 (EEOC Compl. 

¶ 45). 

On February 27, 2017, Kelly’s supervisor issued a proposal to remove him from his 

employment with NTIA, citing 137 specifications, all of which Kelly maintains are “false.” Id.

at 24 (OFO Decision at 2); id. at 4–5 (Am. Compl.). On April 14 he was removed. Id. at 4. 

Kelly contends he was terminated in retaliation for a December 2016 complaint he filed with the 

EEOC, although he does not provide the details of this complaint or further explain the series of 

events. Id. at 5. 

B. Procedural History

The procedural background of this dispute is the only matter truly at issue today. It is 

complicated and, despite briefing and voluminous evidentiary submission from both parties, 

surprisingly mysterious. The following can be gleaned from Kelly’s complaint and the materials 

attached thereto: On December 23, 2016 Kelly filed an administrative complaint with the EEOC 

and requested a hearing. Id. at 10 (referring to “Post-Investigation Processing of Complaint: 61-

2016-00089”). It appears that this EEOC complaint is the same one that is attached to Kelly’s

complaint in this action. Id. at 14–21 (EEOC Compl.) (Agency No. 61-2016-00089). The Court 

assumes that it is, and it contains a litany of allegations, many of which mirror those alleged in 

Kelly’s civil complaint and described above, but several of which do not. Compare id. at 4–5 

(Am. Compl.), with id. at 14–21 (EEOC Compl.). Kelly never says what happened to this 

complaint after he filed it.
6

On September 24, 2020, the OFO issued a decision in a case involving Kelly. Dkt. 9 at 

23 (OFO Decision at 1). But this decision does not correspond to the December 23, 2016 

complaint. It instead appears to relate to a June 8, 2017 administrative complaint Kelly filed 

contesting his termination and asserting various discrimination claims, five of which the 

Department accepted for investigation and which in the main overlap with claims contained in 

Kelly’s EEOC complaint. Id. at 24–25. As explained in the OFO opinion, after Kelly filed his 

June 8 administrative complaint with the Department, the Department bifurcated his removal 

claim from his other discrimination claims and instructed Kelly that he could request either an 

EEOC hearing or a final agency decision with respect to his discrimination claims. Id. at 25. 

The Department further informed Kelly that he had the right to a final agency decision on his 

removal, with an appeal to the Merit Systems Protection Board (“MSPB”). Id.

Kelly requested a final agency decision on his removal, the Department affirmed its 

action, and Kelly appealed that decision to the MSPB. Id. Before the MSPB, Kelly “raised 

affirmative defenses of disability-based disparate treatment, denial of reasonable 

accommodation, and reprisal.” Id. The MSPB affirmed Kelly’s removal and rejected these

“defenses,” holding, among other things, that the Department had not denied him a reasonable 

accommodation. Id. It appears that Kelly raised arguments related to his telework policy in this 

appeal, because the MSPB’s decision explains that Kelly “had been granted a full[-]time 

telework reasonable accommodation in October 2014, which was in place through April of 2015 

and appears to have been unofficially extended for another year” and that Kelly “thereafter 
7

‘withdrew’ a follow-up February 2016 reasonable accommodation request, and instead sought to 

transition back to a traditional partial telework schedule.” Dkt. 15-1 at 618–19 (Def.’s Ex. 6).

2

Kelly petitioned the OFO for review of the MSPB’s decision, and the OFO concurred 

“with the MSPB’s decision that [Kelly] did not establish that [the Commerce Department] 

discriminated against him as alleged.” Dkt. 9 at 23 (OFO Decision at 1). Among other things, 

the OFO rejected Kelly’s contention that the Department “failed to reasonably accommodate his 

hearing disability.” Id. at 26 (OFO Decision at 4). In particular, the OFO concluded that Kelly 

was, in fact, provided with the “reasonable accommodations” that he requested, “including 

telework, schedule changes, ergonomic equipment, and multiple computers.” Id. 26–27 (OFO 

Decision at 4–5). With respect to “Call Bridge,” the OFO explained that, although the 

Department did cancel Call Bridge accounts that were not being used, it “reactivated” the 

account that Kelly used when he informed the Department “of his need.” Id. at 27 (OFO 

Decision at 5). “Likewise,” the OFO concluded, “the [Department] replaced [Kelly’s] cell 

phone once it stopped working.” Id. 

With respect to Kelly’s disparate treatment claims, the OFO once again agreed with the 

MSPB’s disposition. Assuming without deciding that Kelly had established a prima facie case, 

the OFO concluded that the Department had proffered “legitimate, nondiscriminatory reasons for 

[Kelly’s] removal.” Id. In particular, the Department “established that [Kelly] exhibited 

improper conduct in the workplace,” involving his “failure to follow instructions,” absences 

without leave, and “failure to follow leave procedures.” Id. Kelly, for his part, failed to show 

that the Department’s stated reasons for his removal were pretextual. Id. at 27–28 (OFO 

2 Although the Court relies primarily on Kelly’s complaint and its attachments, it takes judicial 

notice of the MSPB decision (submitted as an exhibit by the Department) as it is referenced in 

the OFO decision. 
8

Decision at 5–6). The OFO, accordingly, “agree[d] with the MSPB’s ultimate finding that 

[Kelly] did not establish that this removal was based on disability or age discrimination or in 

reprisal for prior protected activity.” Id. at 28 (OFO Decision at 6).

The OFO decision was a final decision of the EEOC, with “no further right of 

administrative appeal.” Id. at 28 (OFO Decision at 6). Kelly received a “Notice of Right to Sue 

letter” on September 30, 2020, id. at 6 (Am. Compl.), and filed this lawsuit a month later, Dkt. 1. 

He filed his amended his complaint, which is the operative complaint for present purposes, on 

June 3, 2021. Dkt. 9 (Am. Compl.). That complaint asserts claims for discrimination, failure to 

provide reasonable accommodations, and retaliation in violation of the Rehabilitation Act, the 

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq., the Vietnam Era Veterans’ 

Readjustment Assistance Act (“VEVRAA”), 38 U.S.C. § 4212 et seq., several civil service 

regulations, 5 C.F.R. § 315.201; 5 C.F.R. § 316.301–304, and the Department of Commerce’s 

reasonable accommodation policy, DAO 215-10. Id. at 3 (Am. Compl.). Liberally construed, 

the complaint asserts no less than 23 counts in total, organized in table form below:

Claim

A. 09/18/14: Agency cancels Plaintiff’s [reasonable accommodation] RA for Call Bridge Service 

continuing 19-months (hearing-loss)

B. 12/09/14: Agency denies replacement of Plaintiff’s RA for iPhone4 when it dies (hearing loss).

C. 01/04/14: Agency directs Plaintiff “try to fix” unsafe iPhone4 continuing 15-months (hearingloss).

D. 08/14/15: Agency orders Plaintiff withdraw from competition for GS-15 Supervisory Tenured 

position.

E. 10/01/15: Agency promotes GS-15 TERM CONDITIONAL employee to above Tenured 

position.

F.

10/06/15: Agency Supervisor states she will meet with [reasonable accommodation coordinator] 

RAC to update Plaintiff’s RA-2014 Memorandum to permit full-time telework. Updated RA2016-Memorandum never done.

G. 11/24/15: Agency Supervisor on phone call to review FY-16 Performance Plan instead issues a 

“Letter of Caution” pointing to Plaintiff’s immediate termination removal.

H. 01/27/16: False AWOL charges during Federal Shutdown while still under RA-2014 

Memorandum.
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I. 04/18/16: First of several Supervisor denials to Plaintiff work 1st shift (6am-230pm) for safe 

commuting.

J. 05/19/16: Laptop (<=5lbs) Authorized by Office of the Secretary. Ordered on 5/24/2016. 

Unilaterally cancelled by Agency Supervisor on or about 6/6/2016.

K. 12/09/16: False AWOL charges made after sick-leave approved for 48 of 56 hours for 11/28-

12/6/16.

L. 02/27/17: Plaintiff filed with EEOC on 12/23/2016, in retaliation 7-weeks later, Agency 

Supervisor issued a Proposal to Remove Plaintiff.

M. 03/17 /17: False AWOL charge based on Agency Supervisor's error RE: disabled-veteran LWOP 

use

N. 04/14/17: Plaintiff was terminated via Email while on approved sick leave.

O.

Agency Supervisor ignored all of Plaintiff’s approved leave (including 818 hours of sick leave 

following a MVA in 2015) when retaliating against Plaintiff with her Proposal to Remove on 

(2/27/2017). Many of the above leave hours, almost 5 work months, correspond and invalidate 

many of the MISCONDUCT charge dates in Agency’s Proposal to Remove. The Agency's Letter 

of Termination of 4/14/2017 draws from the above misconception of all the false charges made.

P. Did Agency Supervisor and Manager err by not engaging Plaintiff in dialog prior to issuing 

AWOL charges on: 2/5/2016 (20 hours); 12/9/2016 (40 hours) and on 3/23/2017 (8 hours)?

Q. Did Agency err by not engaging Plaintiff (9/18/2014) prior to cancelling his RA for Call Bridge 

Service?

R.

Did Agency err by not replacing Plaintiff's dead, unsafe iPhone 4 when first reported 

(12/14/2014) and then requiring him to work with NTIA Help Desk to “repair” the iPhone 4? 

(i.e. the battery was dead.).

S. Did Agency err, asking Plaintiff withdraw from competition for position now held Agency 

Supervisor?

T. Did Agency Supervisor err by not ever providing an RA 2016 Memorandum for Plaintiff?

U.

The Agency failed to ever provide the RA for a working lightweight laptop ( <=5lbs) after being 

authorized by Office of the Secretary on 5/19/2021.Supervisor cancelled RA without informing 

Plaintiff.

V.

The Agency discriminated against Plaintiff requiring medical document to approve 1st shift (6-

230pm) to support safe commuting. At times when OS encouraged liberal commuting schedules

(SAFE TRAC).

W.

Upon receiving “right to sue” from Agency, Plaintiff filed his case with EEOC on 12/23/2016. 

After learning of this, Agency Supervisor retaliated with a Proposal to Remove including over 

150 false specification charges.

The Department moves to dismiss nineteen of Kelly’s twenty-three claims: claims A–K, 

M, and P–V. Dkt. 15 at 18–19. In its motion, the Department describes Kelly’s employment 

with NTIA and recounts numerous administrative actions in which Kelly was involved during 

his tenure. Id. at 8–12. Curiously, the Department makes no mention of the December 23, 2016 

EEOC complaint on which Kelly focuses, nor does it acknowledge the EEOC action 
10

corresponding to the EEOC complaint Kelly attached to his civil complaint, EEOC No. 570-

2017-445X. Dkt. 9 at 14 (EEOC Compl.). 

In any event, based on its understanding of the administrative procedural history, the 

Department makes two related arguments for why most of Kelly’s claims should be dismissed. 

It first submits that Kelly abandoned twelve of his claims during a series of administrative 

proceedings that took place in 2016 and 2017. Dkt. 15 at 18–19. In the Department’s version of 

events, Kelly raised these same claims in the preliminary counseling phase of the EEOC 

administrative process but failed ever to allege them in a formal complaint. Id. at 18. Second, 

the Department contends that seven of Kelly’s other claims “were never brought to the Agency 

EEO Office” and were instead “first alleged in Plaintiff’s June 3, 2021 Amended Complaint filed 

in this case.” Id. at 19. It argues in the alternative that the Court should treat five of the same 

seven claims as abandoned. Id. All nineteen of these claims (twelve abandoned and seven 

otherwise unexhausted) must dismissed, says the Department, because before bringing 

Rehabilitation Act claims in district court, a plaintiff must exhaust them at the administrative 

level. Id. at 17–19. 

Kelly filed his initial opposition on November 5, 2021, Dkt. 16, and submitted a 

supplemental memorandum on December 3, 2021, Dkt. 18. His initial opposition is scant, and 

although it discusses certain aspects of his administrative proceedings, it is largely unresponsive 

to the Department’s assertions. Dkt. 16 at 1–4. His supplemental memorandum is more 

substantial, but it is devoted almost entirely to the merits of his claims. Dkt. 18 at 1–14. It does 

not address abandonment or administrative exhaustion apart from passing and conclusory 

assertions that Kelly never intended to abandon any of his claims and was not informed by the 

Department that he had done so. Id. at 4, 14. 
11

To date, the parties have largely talked past each other on the issue of administrative 

exhaustion: Kelly has submitted to the Court an undated EEOC complaint in action No. 570-

2017-445X, which asserts claims that largely but do not entirely overlap with the claims he 

brings in this Court. Dkt. 9 at 14–21 (EEOC Compl.). He has also submitted a 2020 OFO 

decision arising out of a separate, June 8, 2017 EEO complaint that he does not otherwise 

mention. Id. at 23–29. The Department, on the other hand, describes an extensive series of 

agency and EEO proceedings in 2015, 2016, and 2017 to which Kelly makes no identifiable 

reference, Dkt. 15 at 8–12, and it attaches to its motion hundreds of pages of records from these 

proceedings, Dkt. 15-1. Unlike Kelly, the Department addresses the June 8, 2017 complaint that 

culminated in the OFO’s September 24, 2020 decision. Dkt. 15 at 10–12. But the Department 

never acknowledges or addresses Kelly’s alleged December 23, 2016 complaint or EEOC No. 

570-2017-445X. 

Before turning to the legal issues raised by the Department’s motion, the Court offers a 

word about terminology. Although the Department treats abandonment and non-exhaustion 

separately, these concepts are two flavors of what is essentially the same non-exhaustion 

argument. See Katz v. Winter, 303 Fed. App’x 125, 126 (3d Cir. 2008) (explaining that a 

plaintiff’s “voluntar[y] abandon[ment]” of administrative claims amounts to a failure to exhaust). 

If a plaintiff abandons her claims during the administrative process, she necessarily fails to 

exhaust them. See Williams v. Brennan, 320 F. Supp. 3d 122, 129–31 (D.D.C. 2018) (treating a 

claim in a complaint that a plaintiff “filed [with the EEOC], and then withdrew” as unexhausted). 

Everything the Court says about administrative exhaustion in this opinion therefore applies 

equally to abandonment.
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II. ANALYSIS

A. Sua Sponte Dismissals

The Department assumed in its brief that Kelly’s complaint asserted claims only under 

the Rehabilitation Act. Dkt. 15 at 3. That is understandable, because Kelly’s claims do appear 

largely to arise under the Rehabilitation Act. But it is not correct. Kelly’s complaint also asserts 

(or attempts to assert) claims under the VEVRRA, 5 C.F.R. § 315.201, 5 C.F.R. § 316.301–304,

and the Department’s reasonable accommodation policy, DAO 215-10. Dkt. 9 at 3 (Am. 

Compl.). The Department’s oversight makes little practical difference, however, because the 

Court now sua sponte dismisses all of Kelly’s claims, except those that he brings under the 

Rehabilitation Act. 

Kelly’s ADA claims fail as a matter of law, because the “ADA does not apply to 

employees of the federal government.” Ahmed v. Napolitano, 825 F. Supp. 2d 112, 115 (D.D.C. 

2011). Under 42 U.S.C. § 12111(5)(B)(i), “the United States” is excluded from the ADA’s 

definition of “employer.” Here, Kelly is suing the United States through the Secretary of 

Commerce. The Rehabilitation Act, not the ADA, is the proper vehicle for disability 

discrimination claims against the federal government like Kelly’s. See 29 U.S.C. § 791; see also 

Woodruff v. Peters, 482 F.3d 521, 526–29 (D.C. Cir. 2007). 

Kelly’s other non-Rehabilitation Act claims also fail as a matter of law, although for 

different reasons. Under Federal Rule of Civil Procedure 8(a)(2), Kelly’s complaint must 

contain “a short and plain statement” of his claim “showing that [he] is entitled to relief.” Even 

assuming (for now) that Kelly has alleged enough to assert a claim (or claims) under the

Rehabilitation Act, he has not done so with respect to VEVRAA or the various regulations he 

lists at the outset of his complaint. The Court cannot discern from Kelly’s pleading any factual 
13

and legal basis for granting relief under these other laws. Similarly, Kelly fails to state a claim 

under the Department’s reasonable accommodation policy, DAO 215-10, because that policy 

does not appear to provide an independent basis for relief. The Court has construed Kelly’s 

pleadings generously because he is a pro se litigant, but “even pro se litigants . . . must comply 

with the Federal Rules of Civil Procedure.” Medina v. California, No. 22-cv-0341, 2022 WL 

715180, at *1 (D.D.C. Mar. 9, 2022). 

The Court will, accordingly, dismiss all of Kelly’s claims, except those that he brings 

under the Rehabilitation Act.

In the interest of efficiency, the Court will also consolidate several of Kelly’s claims that 

are redundant with other claims. It is not clear from the complaint which of Kelly’s statements 

are meant to be independent claims and which are not. For ease of comprehension, the Court has 

followed the Department’s convention and treated each statement as its own claim. Dkt. 15 at 

13–15. The Court observes, however, that claims Q, R, S, T, U, and V are almost entirely 

redundant with claims A, B, D, F, J, and I, respectively, and that B and C are redundant of each 

other. The explanation for this duplication may be that Kelly never actually intended for all of 

these statements to be treated as separate counts. Regardless, going forward in this litigation the 

Court will do the following: (1) treat claims A and Q as a single claim; (2) treat claims B, C, and 

R as a single claim; (3) treat claims D and S as a single claim; (4) treat claims F and T as a single 

claim; (5) treat claims I and V as a single claim; and (6) treat claims J and U as a single claim. If

Kelly was intending to assert any of these consolidated claims separately, those claims are 

dismissed as redundant. The Court has provided a revised chart of claims as an appendix to this 

opinion so that these changes are clear to the parties.
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B. Failure to Exhaust

The Department moves to dismiss most of Kelly’s Rehabilitation Act claims for failure to 

exhaust, pursuant to Rule 12(b)(6). Dkt. 15. According to the Department, failure to exhaust is

“an affirmative defense,” which the defendant “bears the burden of pleading and proving.” Id. at 

17–18. This is true for claims arising under most anti-discrimination statutes, where exhaustion 

does not determine the Court’s subject-matter jurisdiction. See Bowden v. United States, 106 

F.3d 433, 437 (D.C. Cir. 1997). But the Rehabilitation Act is different. In some circumstances, 

a Rehabilitation Act plaintiff’s failure to exhaust is a jurisdictional bar to her civil suit. See 

Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006). In others, the exhaustion requirement is 

non-jurisdictional. Doak v. Johnson, 798 F.3d 1096, 1103–05 (D.C. Cir. 2015). This distinction 

is of considerable consequence to the parties. “To the extent the requirement is jurisdictional, 

the plaintiff bears the burden of alleging facts sufficient to establish that he or she exhausted 

administrative remedies and bears the ultimate burden of proof.” Williams, 320 F. Supp. 3d at 

127 (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006); Georgiades v. 

Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir. 1984)). “In contrast, to the extent it is nonjurisdictional, the failure to exhaust constitutes an affirmative defense, and thus the defendant 

must raise the defense and bears the burden of proof.” Id. (citing Bowden, 106 F.3d at 437).

Two D.C. Circuit decisions mark the boundary between jurisdictional and nonjurisdictional exhaustion under the Rehabilitation Act. In Spinelli v. Goss, the court of appeals 

held that a plaintiff’s complete failure to file an administrative complaint concerning a 

Rehabilitation Act claim deprived the court of jurisdiction over the claim. 446 F.3d at 162. 

After Spinelli was decided, several district court decisions held “in categorical terms, that 

administrative exhaustion under the Rehabilitation Act is a jurisdictional requirement.” 
15

Williams, 320 F. Supp. 3d at 127 (collecting cases). But a decade later, in Doak v. Johnson, the 

court of appeals clarified that Spinelli “does not reach that far.” 798 F.3d at 1103. Doak

explained that although Spinelli’s holding was jurisdictional, the Spinelli decision “did not attach 

irremediable jurisdictional consequence to every procedural misstep that happens during 

exhaustion of the administrative process.” Id. at 1104. Instead, “all Spinelli held” was that 

district courts lack jurisdiction over Rehabilitation Act claims where a plaintiff has failed entirely 

to “file an administrative complaint or to obtain any administrative decision at all.” Id. at 1103–

04; id. at 1104 (“Because the plaintiff in Spinelli never filed an administrative complaint, there 

was never any final administrative disposition of a complaint, or any reviewable final 

administrative action at all.”). In Doak itself the plaintiff had filed an administrative claim but 

had failed to initiate the EEO counseling process within 45 days, a requirement under EEOC 

regulations. Id. at 1103. The court of appeals concluded that, unlike the “wholesale failure to 

file an administrative complaint” in Spinelli, this timeliness oversight was not fatal to 

jurisdiction. Id. at 1103–04.

In reaching this result, Doak distinguished between statutory and non-statutory 

exhaustion requirements. The Rehabilitation Act contains a single statutory exhaustion 

requirement, which limits judicial review to employees “aggrieved by the final disposition” of 

their administrative “complaint” or “by the failure [of the agency] to take final action on such 

complaint.” 29 U.S.C. § 794a(a)(1). That language was critical to Spinelli’s holding: “Since 

there was no administrative complaint,” the court explained, there could be no “final disposition” 

of a complaint. 446 F.3d at 162. But as Doak pointed out, Spinelli did not address the impact of 

failing to follow any “non-statutory step[s]” that “preced[e] the formal agency exhaustion 

required by statute,” such as timeliness obligations imposed by regulation. Doak, 798 F.3d at 
16

1104. Confronting this latter circumstance, Doak held that Spinelli’s reasoning did not apply to 

non-statutory requirements, making clear that, unlike statutory requirements, non-statutory 

requirements (including those imposed pursuant to the governing EEOC regulations) do not 

circumscribe the subject-matter jurisdiction of the federal courts. 

The relevant question for jurisdictional purposes, accordingly, is whether the plaintiff is 

aggrieved by the agency’s final disposition of his complaint, notwithstanding any missteps he 

may have made along the way with respect to the relevant non-statutory procedural 

requirements. In Williams, for example, this Court held that it lacked jurisdiction over a 

plaintiff’s claims where she had “filed, and then withdrew, her complaint” before the agency, 

because her withdrawal of the complaint precluded the agency from a rendering a “final 

disposition of [the administrative] complaint.” 320 F. Supp. 3d at 130 (quoting 29 U.S.C. 

§ 794a(a)(1)). The Court reached the same result in McIver v. Mattis, 318 F. Supp. 3d 245 

(D.D.C. 2018), where the plaintiff had “filed a charge with the appropriate agency but did not 

provide notice of the particular claim later pursued in court.” Id. at 250. The Court reasoned 

that “a failure to provide notice of a particular claim is no different—as far as that claim goes—

than a wholesale failure to file.” Id. at 251. 

Against this backdrop, the Court must do the following, mindful that administrative 

exhaustion demands a “claim-by-claim” analysis. Webster v. Del Toro, 49 F.4th 562, 567 (D.C. 

Cir. 2022). First, because Kelly bears the burden of showing that he has exhausted his 

administrative remedies in a manner sufficient to establish subject-matter jurisdiction, the Court 

must review his complaint and the documents incorporated therein to determine whether he has 

carried that burden with respect to each claim. If Kelly has not done so with respect to a claim, 

the Court must dismiss the claim for lack of subject-matter jurisdiction. Under this circuit’s two-
17

tiered exhaustion framework, once Kelly demonstrates that he has exhausted a claim in a manner 

sufficient to establish jurisdiction, the exhaustion requirement shifts from a pleading requirement 

to an affirmative defense. Correspondingly, the burden shifts from Kelly to the Department, and 

Kelly need not plead facts sufficient to establish non-jurisdictional exhaustion. This means that a 

defendant arguing the affirmative defense of non-exhaustion at the motion-to-dismiss stage of 

the proceeding can prevail only if the plaintiff’s “failure to exhaust is plain from the allegations 

of the complaint or the undisputed records of the administrative proceeding that are attached to 

or referred to in the complaint or that are subject to judicial notice.” Yaich v. Walsh, 21-cv-669, 

2022 WL 3139028, at *3 (D.D.C. Aug. 5, 2022). “Against this backdrop, the Court must 

determine whether [Kelly] has exhausted [his] administrative claims, whether any failure to 

exhaust is jurisdictional or non-jurisdictional, and what consequences follow.” Williams, 320 F. 

Supp. 3d at 128. 

Applying this framework, the Court concludes that even construing Kelly’s complaint 

and the documents it incorporates liberally, Kelly has failed to carry his burden of alleging facts 

sufficient to show that he satisfied the jurisdictional exhaustion requirement with respect to

claims D (and thus also S), E, G, H, I (and thus also V), K, M, and P. This is readily apparent 

with respect to claims D (“08/14/15: Agency orders Plaintiff withdraw from competition for GS15 Supervisory Tenured position [sic].”) and E (“10/01/15: Agency promotes GS-15 TERM 

CONDITIONAL employee to above Tenured position.”). Nothing in the materials Kelly has 

submitted refers (at least in discernible terms) to claims D and E, much less establishes that he 

filed a complaint asserting them and is aggrieved by a “final disposition” of that complaint or the 

agency’s failure to act on it. 29 U.S.C. § 794a(a)(1). The EEOC administrative complaint that 

Kelly incorporates into his complaint before this Court does not include these claims, and as 
18

McIver explained, “a failure to provide notice of a particular claim is no different—as far as that 

claim goes—than a wholesale failure to file.” 318 F. Supp. 3d at 251. 

Although the EEOC administrative complaint that Kelly filed in this case includes

allegations similar to those raised in claims G, H, I (and thus also V), K, M, and P, Kelly still did 

not exhaust these claims for purposes of this Court’s jurisdiction. Filing an administrative

complaint is not enough, absent any showing or allegation that Kelly was “aggrieved by the final 

disposition” of that complaint, 29 U.S.C. § 794a(a)(1), and Kelly has made no such showing or 

allegation. This result is consistent with Doak, despite Doak’s focus on the fact that the plaintiff 

in Spinelli had not filed a complaint at all. Doak recognized that Spinelli, relying on the text of 

the Rehabilitation Act, held that “federal court ‘jurisdiction depend[s] on the ‘final disposition of 

[an administrative] complaint.’” 798 F.3d at 1103–04 (second alteration in original) (quoting 

Spinelli, 446 F.3d at 162). Doak did not displace that holding, nor did it purport to limit Spinelli

entirely to its facts—i.e., only to circumstances in which no complaint has ever been filed. 

Absent any allegation that the Department rendered a final disposition or the incorporation of 

any document reflecting such a disposition, Kelly’s complaint fails to clear the threshold hurdle 

for invoking this Court’s jurisdiction with respect to these claims.

Claims A (and thus also Q) and B (and thus also C and R), in contrast, meet this

requirement, because the OFO addressed claims similar to these in its final decision on Kelly’s 

termination. Claim A pertains to the Department’s removal of Kelly’s Call Bridge reasonable 

accommodation, Dkt. 9 at 4–5 (Am. Compl.), and, in its opinion, the OFO explained that 

although Kelly “maintained that he was denied an accommodation related to ‘Call Bridge,’ the 

record shows that the [Department] cancelled Call Bridge accounts that were not being used as a 

measure to save money,” and that “[o]nce [Kelly] informed the [the Department] of his need for 
19

Call Bridge, it was reactivated.” Id. at 27 (OFO Decision at 5). Claim B concerns the 

Department’s alleged failure to replace Kelly’s cell phone, a contention the OFO rejected, noting

that “the Agency replaced Petitioner’s cell phone once it stopped working.” Id. at 4–5 (Am. 

Compl.), 27 (OFO Decision at 5). These references, which are incorporated into Kelly’s 

complaint in this action, are sufficient for present purposes. 

Claims F (and thus also T) and J (and thus also U) also pass jurisdictional muster at this 

initial point in the litigation. The OFO’s decision does not mention claims F and J specifically, 

as it does claims A and B. But the MSPB’s decision does, as the Department forthrightly 

acknowledges with respect to claim J. Dkt. 15-1 at 618–19 (Def.’s Ex. 6) (discussing Kelly’s 

claims regarding denial of a computer and his telework policy); Dkt. 15 at 18 n.6 (stating that 

Kelly’s claims regarding a lightweight laptop accommodation “were . . . presented before the 

MSPB as part of [Kelly’s] affirmative defense related to reasonable accommodations”). 

Although the OFO opinion does not expressly pass on every aspect of the MSPB decision—and 

does not mention these allegedly denied reasonable accommodations by name—it concurs in the 

decision in full. Dkt. 9 at 23, 28 (OFO Decision at 1, 6). Accordingly, at least at this early stage, 

the Court can infer that these claims resulted in a final agency disposition. 

Complicating the exhaustion analysis is the fact that, in this case, Kelly asserted claims 

A, B, F, and J as “affirmative defenses” in the MSPB proceeding, which the OFO then 

considered when it reviewed the MSPB’s decision. Dkt. 9 at 25–27 (OFO Decision at 3–5). 

That posture raises a host of difficult questions, which neither party addresses—or even 

acknowledges—in its briefing. Does a federal employee, for example, exhaust a failure to 

accommodate claim when he raises the underlying issue as an “affirmative defense” to his 

removal in an MSPB proceedings? If so, how substantial must the failure to accommodate be, 
20

and how closely connected to the adverse employment action that is the basis for MSPB 

jurisdiction? How should a court, for instance, treat an alleged failure to accommodate that is 

raised in an MSPB proceeding, if that failure did not even arguably lead to the employee’s 

removal? And, even if the alleged failure to accommodate did not rise to the level of an 

affirmative defense to the employee’s termination, is the exhaustion requirement satisfied if the 

MSPB nonetheless addresses the allegation, and OFO subsequently concurs in the MSPB’s 

decision? Without briefing from either side, and, in any event, on an incomplete administrative 

record, the Court is unable to decide these questions. For the present, and drawing all inferences 

in Kelly’s favor as it must, the Court concludes that Kelly has carried his burden of establishing 

that he received a final disposition of these claims and, accordingly, the complaint that contained 

them.

3

 

This, then, leaves the question whether the Department has carried its burden of 

demonstrating that Kelly has nonetheless failed to comply with a non-statutory exhaustion 

requirement with respect to one or more of the claims that have cleared the threshold, 

jurisdictional hurdle. Here, the Department only argues abandonment, Dkt. 15 at 18, and the 

Court is unpersuaded that it can resolve that question—or any related question—at this stage of 

the proceeding and on the record that is properly before the Court. Because the affirmative 

3

 As noted above, the OFO final decision considered only the removal component of the 

administrative complaint that Kelly filed on June 8, 2017, and not any stand-alone discrimination 

or retaliation claims. Any such stand-alone claims alleged in that administrative complaint,

proceeded through a separate process with the EEOC. Dkt. 15-1 at 775–77 (Def.’s Ex. 12). It 

appears from the Court’s review of the record that the EEOC dismissed these claims without 

prejudice (and returned them to the Department to be held in abeyance) pending the resolution of 

the MSPB and OFO process related to Kelly’s removal. Id. The Court cannot discern the 

current status of those claims—whether they remain in abeyance and, if not, what if any 

resolution has been reached. 
21

defense question is complex, largely unbriefed, and record-dependent, the Court will deny the 

Department’s motion with respect to the remaining claims without prejudice. 

C. Next Steps

For the reasons provided above, the Court will dismiss the majority of Kelly’s claims for 

lack of jurisdiction, leaving only claims A, B, F, J, L, N, O, and W (the latter four the 

Department has not moved to dismiss). The Court’s dismissal of these claims, however, whether 

under Rule 8 or for lack of subject-matter jurisdiction, is without prejudice. Havens v. Mabus, 

759 F.3d 91, 98 (D.C. Cir. 2014) (“A jurisdictional dismissal—which is not an adjudication on 

the merits under Rule 41(b)—is, then, a dismissal without prejudice.”). The Court will give 

Kelly forty-five days to file a second amended complaint. 

Should Kelly file a second amended complaint, he must set forth—in detail—each step 

he went through in the administrative process with respect to each claim and allege specific facts 

demonstrating why he has exhausted his administrative remedies with respect to each of his 

claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Consistent with Federal Rule 

of Civil Procedure 8(a)(2), he must also allege facts sufficient to give rise a plausible inference 

that he is entitled to relief under the specific statute he invokes. 

Assuming that Kelly files a second amended complaint, the Department is of course free 

to move to dismiss that complaint, in whole or in part, on any grounds it deems appropriate. As 

discussed, if the Department asserts that Kelly has failed to exhaust administrative remedies in a 

manner that goes to the Court’s subject-matter jurisdiction, the burden is on Kelly to allege facts 

sufficient to sustain such jurisdiction. Williams, 320 F. Supp. 3d at 127. But if the Department 

argues that Kelly failed to satisfy a non-statutory exhaustion requirement, the Department bears 

the burden of proof. Given the complicated procedural history of this dispute, one or more 
22

declarations clearly setting forth what occurred would greatly assist the Court. For this reason

and given the convoluted administrative record, if the Department decides to raise further 

exhaustion arguments, it should consider whether a motion for summary judgment fits the bill

better than does a motion to dismiss. Although non-jurisdictional administrative exhaustion 

arguments can—at times—be resolved on a motion-to-dismiss, see Thompson v. DEA, 492 F.3d 

428, 438 (D.C. Cir. 2007), it can be “difficult for defendants to prevail” on exhaustion arguments 

“at this stage,” rather than at summary judgment, unless the complaint or materials it 

incorporates make the plaintiff’s failure to exhaust clear, Huang v. Wheeler, 215 F. Supp. 3d 

100, 111 (D.D.C. 2016). 

In any such motion, moreover, the Department should set forth the legal requirements for 

administrative exhaustion under the relevant statutes and regulations and, if it submits exhibits, 

point the Court specifically to where in such exhibits it believes the relevant evidence can be 

found. Precise citations were few and far between in the Department’s partial motion to dismiss, 

and the Department provided the Court a limited explanation of its nearly 800 pages of exhibits.

The Department should also discuss the significance of the various administrative proceedings 

that have taken place with respect to a given claim, something it failed to do in its instant motion. 

See supra p. 9–11.

In short, whether the burden lies with the plaintiff (as a matter of jurisdiction) or the 

defendant (as an affirmative defense), the Court should not be required to sort through hundreds 

of pages of record materials with little or no assistance from the parties in organizing or 

understanding what happened over the course of many years before many different entities and 

decisionmakers—particularly where the Court cannot, on its own, discern whether any other

proceedings or filings may have occurred.
23

CONCLUSION

For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part the 

Department’s partial motion to dismiss, Dkt. 15, and DISMISSES claims D, E, G, H, I, K, M, P, 

S, and V without prejudice.

4

 To the extent consistent with this opinion, Kelly may file a second

amended complaint within 45 days—on or before December 12, 2022. 

For the benefit of the parties, the Court has attached an appendix to this opinion that lists 

each of Kelly’s claims and their status in light of the Court’s decision. 

SO ORDERED

 /s/ Randolph D. Moss 

 RANDOLPH D. MOSS 

 United States District Judge 

Date: October 26, 2022

4 Kelly has filed a motion to compel a Rule 26(f) Conference, Dkt. 20, which the Department has 

opposed, Dkt. 22, as well as a motion for an Order compelling the Department to provide his 

time and attendance data, Dkt. 24, which the Department has also opposed, Dkt. 25. Because 

Kelly’s motions were premature and because the Court is providing Kelly an opportunity to file a

second amended complaint, these motions are hereby DENIED as moot. In response to Kelly’s 

motion to compel a Rule 26(f) Conference, the Department moved to stay discovery pending 

resolution of the Department’s motion to dismiss. Dkt. 23. It is hereby ORDERED that this 

motion is GRANTED and that discovery is stayed pending further order of the Court, which will 

follow Kelly’s submission, if any, of a second amended complaint, and, assuming Kelly chooses 

to submit a second amended complaint, the resolution of any motion by the Department to 

dismiss the second amended complaint, the Department’s answer to the second amended 

complaint, and a scheduling conference.
24

APPENDIX I – STATUS OF CLAIMS

Claim Status

A.

A: 09/18/14: Agency cancels Plaintiff’s [reasonable 

accommodation] RA for Call Bridge Service continuing 19-

months (hearing-loss)

Q: Did Agency err by not engaging Plaintiff (9/18/2014) prior 

to cancelling his RA for Call Bridge Service?

Combined with claim Q and 

not dismissed

B.

B: 12/09/14: Agency denies replacement of Plaintiff’s RA for 

iPhone4 when it dies (hearing loss).

C: 01/04/14: Agency directs Plaintiff “try to fix” unsafe 

iPhone4 continuing 15-months (hearing-loss).

R: Did Agency err by not replacing Plaintiff's dead, unsafe 

iPhone 4 when first reported (12/14/2014) and then requiring 

him to work with NTIA Help Desk to “repair” the iPhone 4? 

(i.e. the battery was dead.).

Combined with claims C and 

R and not dismissed

C. Combined with claim B

D.

D: 08/14/15: Agency orders Plaintiff withdraw from 

competition for GS-15 Supervisory Tenured position [sic].

S: Did Agency err, asking Plaintiff withdraw from 

competition for position now held Agency Supervisor?

Combined with claim S and 

dismissed without prejudice

E. 10/01/15: Agency promotes GS-15 TERM CONDITIONAL 

employee to above Tenured position. Dismissed without prejudice

F.

F: 10/06/15: Agency Supervisor states she will meet with 

[reasonable accommodation coordinator] RAC to update 

Plaintiff’s RA-2014 Memorandum to permit full-time 

telework. Updated RA-2016-Memorandum never done.

T: Did Agency Supervisor err by not ever providing an RA 

2016 Memorandum for Plaintiff?

Combined with claim T and 

not dismissed

G.

11/24/15: Agency Supervisor on phone call to review FY-16 

Performance Plan instead issues a “Letter of Caution” 

pointing to Plaintiff’s immediate termination removal.

Dismissed without prejudice

H. 01/27/16: False AWOL charges during Federal Shutdown 

while still under RA-2014 Memorandum. Dismissed without prejudice

I.

I: 04/18/16: First of several Supervisor denials to Plaintiff 

work 1st shift (6am-230pm) for safe commuting.

V: The Agency discriminated against Plaintiff requiring 

medical document to approve 1st shift (6-230pm) to support 

safe commuting. At times when OS encouraged 

liberal commuting schedules (SAFE TRAC).

Combined with claim V and 

dismissed without prejudice
25

J.

J: 05/19/16: Laptop (<=5lbs) Authorized by Office of the 

Secretary. Ordered on 5/24/2016. Unilaterally cancelled by 

Agency Supervisor on or about 6/6/2016.

U: The Agency failed to ever provide the RA for a working 

lightweight laptop ( <=5lbs) after being authorized by Office 

of the Secretary on 5/19/2021.Supervisor cancelled RA 

without informing Plaintiff

Combined with claim U and 

not dismissed

K. 12/09/16: False AWOL charges made after sick-leave 

approved for 48 of 56 hours for 11/28-12/6/16. Dismissed without prejudice

L.

02/27/17: Plaintiff filed with EEOC on 12/23/2016, in 

retaliation 7-weeks later, Agency Supervisor issued a Proposal 

to Remove Plaintiff.

Not dismissed

M. 03/17 /17: False AWOL charge based on Agency Supervisor's 

error RE: disabled-veteran LWOP use Dismissed without prejudice

N. 04/14/17: Plaintiff was terminated via Email while on 

approved sick leave. Not dismissed

O.

Agency Supervisor ignored all of Plaintiff’s approved leave 

(including 818 hours of sick leave following a MVA in 2015) 

when retaliating against Plaintiff with her Proposal to 

Remove on (2/27/2017). Many of the above leave hours, 

almost 5 work months, correspond and invalidate many of the 

MISCONDUCT charge dates in Agency’s Proposal to 

Remove. The Agency's Letter of Termination of 4/14/2017 

draws from the above misconception of all the false charges 

made.

Not dismissed

P.

Did Agency Supervisor and Manager err by not engaging 

Plaintiff in dialog prior to issuing AWOL charges on: 

2/5/2016 (20 hours); 12/9/2016 (40 hours) and on 3/23/2017 

(8 hours)?

Dismissed without prejudice

Q. Combined with claim A

R. Combined with claims B and C

S. Combined with claim D

T. Combined with claim F

U. Combined with claim J

V. Combined with claim I

W.

Upon receiving “right to sue” from Agency, Plaintiff filed his 

case with EEOC on 12/23/2016. After learning of this, 

Agency Supervisor retaliated with a Proposal to Remove 

including over 150 false specification charges.

Not dismissed