UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JOSE GUILLERMO ANDUEZA CROCE, : 

 : 

Plaintiff, : Civil Action No.: 21-00264 (RC)

 : 

 v. : Re Document Nos.: 7, 12 

 : 

MERRICK B. GARLAND, Attorney General, : 

 United States of America : 

 : 

Defendant. : 

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS THE 

COMPLAINT AND GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SURREPLY

I. INTRODUCTION

Plaintiff Jose Guillermo Andueza Croce applied to become a Special Agent with the FBI 

but was medically disqualified due to a color vision deficiency in 2016. He submitted a request 

for a waiver of that requirement in March 2017, to which the FBI has not yet responded. 

Andueza contacted the FBI’s Equal Employment Opportunity (EEO) office in April 2020, filed a 

complaint with the agency in June 2020, and brought the present lawsuit in January 2021. The 

Government has moved to dismiss on the grounds that Andueza has failed to exhaust 

administrative remedies. The Court grants in part the Government’s motion as it relates to the 

initial medical disqualification in 2016 and denies it in part as it relates to the 2017 request for a 

waiver. 

II. FACTUAL BACKGROUND

Andueza has commendably served this country as an Intelligence Analyst with the 

Federal Bureau of Investigations (FBI) for over a decade. Pl.’s Original Compl. (“Compl.”) ¶ 5, 

ECF No. 1. In 2014, he sought to broaden that admirable record of service by applying to 
2 

become a Special Agent. Id. ¶ 6. Despite successfully passing the first two phases of the 

selection process and receiving a conditional offer in August 2016, his application was rejected 

on October 17, 2016 because a medical officer had determined that he suffered from “color 

blindness.” Id. ¶¶ 6, 8. The letter informing him of the decision read: 

Your applicant fitness for duty examination for the Special Agent position has undergone 

an individualized assessment by a FBI medical officer. The Medical Officer has 

determined that your medical condition, color blindness, may jeopardize your ability to 

safely and efficiently perform the essential functions of this position. We understand this 

determination is a disappointment to you; however, please know that your current duties 

in the FBI are already making a significant contribution to the security of our country. 

Ex. A of Pl.’s Resp. to Def.’s Mot. Dismiss (“Pl. ROI”), at 15,1 ECF No. 9-1. 

In response, on March 9, 2017, Andueza sent an email through his Special Agent in 

Charge to the FBI’s Assistant Director for Human Resources, David Schlendorf, “requesting a 

waiver . . . so I can continue with the FBI Special Agent Application process.” Id. at 16–17; 

Compl. ¶ 9. Andueza attached a letter from his doctor as supporting medical evidence. Compl. ¶ 

9. Mr. Schlendorf responded in May 2018, stating that the office had “reviewed your . . . email 

appealing the discontinuation of your application” and requesting additional information. Pl. 

ROI at 18; Compl. ¶ 10. Andueza provided the information, which included documentation of 

how he could correct his minor color vision deficiency with a special lens, in June 2019. Compl. 

¶ 10; Pl. ROI at 21. The agency acknowledged receipt in December 2020. Pl. ROI at 25. 

Andueza followed up on his request in January 2020 requesting a response within thirty days. 

Compl. ¶ 10. After hearing no response, see Compl. ¶ 10; Def.’s Mem. Supp. Mot. Dismiss 

(“Def. Mot.), at 2, ECF No. 7-1, he contacted an EEO counselor in April 2020 and filed an EEO 

1

 Because Andueza submitted only selected pages from the full ROI, the page numbering 

of Plaintiff’s ROI Exhibits cited here corresponds to the pdf page numbers in the attachment at 

ECF 9-1 rather than the original pagination of the ROI. 
3 

complaint with the FBI in June 2020, Ex. A of Def.’s Mot. Dismiss (“EEO Compl.”), ECF No. 

7-2. 

As alleged in the Complaint, the reason for the agency’s failure to respond was that it had 

put a handful of applicants with color vision deficiencies “on hold” pending a legal 

determination about how to individually assess those waiver requests. Compl. ¶ 13. The 

Complaint alleges that Andueza and at least four other candidates have been trapped in this 

“limbo” for several years and that the FBI still does not provide individualized waiver 

assessments to individuals with color vision deficiencies. Id.. 

When Andueza was interviewed by the EEO officer in May 2020, the counselor marked a 

box noting that the contact was initiated more than 45 days beyond “any of the alleged 

discriminatory incidents” but explained in an annotation that “Mr. Andueza provided all 

allegations of harm to show a pattern of on-going discrimination.” Pl. ROI at 4. That form also 

described Andueza’s claim as having “been subjected to discrimination based on his disability 

when from March 2017 through the present, the Human Resources Division failed to provide a 

response to his Special Agent (SA) waiver request.” Id. After 180 days without a decision on 

his complaint, Andueza filed suit in this court. Compl. ¶ 16. The Government has moved to 

dismiss the complaint, arguing that Andueza failed to exhaust administrative remedies by not 

contacting EEO within 45 days of the discriminatory action, as required by regulation. Def. Mot. 

at 5–7; 29 C.F.R. § 1614.105(a). 

III. PRELIMINARY MATTERS

A. Legal Standard 

A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's likelihood of success 

on the merits, but rather “tests the legal sufficiency of a complaint” by asking whether the 
4 

plaintiff has properly stated a claim for which relief can be granted. Fed. R. Civ. P. 12(b)(6); 

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint must be construed 

“liberally in the plaintiff’s favor with the benefit of all reasonable inferences derived from the 

facts alleged.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006) (citing Kowal v. 

MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). But “[t]o 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, 556 U.S. 662, 678 (2009) (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements,” are insufficient to withstand a motion 

to dismiss. Id. A court need not accept a plaintiff's legal conclusions as true, id., nor must a 

court presume the veracity of legal conclusions that are couched as factual allegations, Twombly, 

550 U.S. at 555. “[A]n affirmative defense may be raised . . . under Rule 12(b) when the facts 

that give rise to the defense are clear from the face of the complaint.” Smith-Haynie v. District of 

Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). 

B. Reliance on Documents Outside of the Pleadings

“In determining whether a complaint fails to state a claim, [the Court] may consider only 

the facts alleged in the complaint, any documents either attached to or incorporated in the 

complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis 

Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). At the motion to dismiss stage, the 

Court may also rely on documents provided in the briefing “upon which the plaintiff’s complaint 

necessarily relies even if the document is produced not by the plaintiff in the complaint.” See 

Angelex Ltd. v. United States, No. 15-0056, 2015 WL 5011421, at *11 n.11 (D.D.C. Aug. 24, 

2015) (internal quotation mark omitted) (quoting Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 
5 

F. Supp. 2d 117, 119 (D.D.C. 2011)). In employment discrimination cases, courts may, and 

often do, take judicial notice of EEOC charges and EEOC decisions. See, e.g., Golden v. Mgmt. 

& Training Corp., 319 F. Supp. 3d 358, 366 n.2 (D.D.C. 2018); Spence v. Wolf, No. 19-cv-2919, 

2020 WL 6075727, at *3 (D.D.C. Oct. 15, 2020). “[C]ourts may typically refer to administrative 

records of Equal Employment Opportunity complaints, investigations, and adjudications for the 

limited purpose of determining whether Plaintiff exhausted administrative remedies before suing 

without converting the Motion to Dismiss into a Motion for Summary Judgment . . . .” Roberts 

v. Scalia, 1:19-cv-00474, 2020 WL 1892057, at *3 n.2 (D.D.C. Apr. 16, 2020). 

Both parties attach additional documents from the FBI’s EEO investigation in their 

briefing that they contend are properly considered at the Motion to Dismiss phase. See Def. Mot. 

at 2 n.1; Pl.’s Resp. to Def.’s Mot. Dismiss (“Opp’n”), at 1 n.1, ECF No. 9. The parties appear to 

agree that the EEO complaint form and correspondence between Andueza and the FBI, while not 

attached to the Complaint, are incorporated there by reference. See Def. Mot. at 2 n.1; Opp’n at 

1 n.1; see also St. Francis Xavier Parochial Sch., 117 F.3d at 624 (allowing for consideration of 

“documents either attached to or incorporated in the complaint” at the motion to dismiss stage). 

Neither party disputes the authenticity of those materials, but the FBI objects to the 

inclusion of some pages in the ROI that it claims are privileged and were inadvertently released. 

See Def.’s Reply Supp. Mot. Dismiss (“Reply”), at 4 n.5, ECF No. 10 (“Plaintiff cites portions of 

the [ROI] that include material protected by the attorney-client privilege . . . . Those 

communications were inadvertently included . . . . Nevertheless, it is also apparent from those 

documents that Plaintiff was disqualified from the Special Agent position.”). The disputed 

portions of that attachment are the subject of a pending motion for a protective order that is not 

yet ripe and which the Court takes no opinion on here. See Def.’s Mot. Protective Order, ECF 
6 

No. 14. For the purpose of resolving the present motion to dismiss, the Court will therefore 

consider only the additional attachments to the Motion to Dismiss and the non-disputed 

attachments to the Opposition.2

IV. ANALYSIS

A. Administrative Exhaustion under the Rehabilitation Act

The sole count alleged in Andueza’s complaint is for discrimination on the basis of his 

physical disability under the Rehabilitation Act. Compl. ¶ 17. The Rehabilitation Act requires 

federal employees to exhaust administrative remedies by submitting a claim to the employing 

agency before bringing suit. Doak v. Johnson, 798 F.3d 1096, 1099 (D.C. Cir. 2015). The 

procedures for doing so, both under the Rehabilitation Act and other federal anti-discrimination 

laws, are established by regulation at 29 C.F.R. § 1614 et seq. 

The first step of that process is for an individual to “initiate contact with a [EEO] 

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

§ 1614.105(a)(1), although that time may be extended by the agency where the employee was 

not notified of the time limits, was not reasonably aware of the discriminatory act, or “for other 

reasons considered sufficient by the agency,” id. § 1614.105(a)(2). Following informal 

counseling, the aggrieved individual may then file a complaint with the agency that allegedly 

discriminated against the complainant. 29 C.F.R. § 1614.106(a). Prior to a request for a hearing, 

the agency shall dismiss a complaint “[t]hat fails to comply with the applicable time 

limits . . . unless the agency extends the time limits in accordance with § 1614.604(c) . . . .” 29 

2

 The Government attaches additional emails to its Reply brief without contending that 

they are incorporated by reference in the Complaint or that they are necessary to resolve this 

Motion. See Reply at 3 n.3. The Court also has not considered those additional attachments in 

resolving this Motion. 
7 

C.F.R. § 1614.107. Section 1614.604(c) in turn states that the time limits within the regulations 

are subject to equitable tolling, waiver, and estoppel. Id. § 1614.604(c). “Once [the formal 

administrative grievance] process concludes or stalls, the Rehabilitation Act authorizes the filing 

of a lawsuit in federal court by ‘any employee or applicant for employment aggrieved by the 

final disposition of [her administrative] complaint, or by the failure to take final action on such 

complaint.’” Doak, 798 F.3d at 1100 (quoting 29 U.S.C. § 794a(a)(1)). 

The failure to comply with the proscribed timelines is non-jurisdictional, meaning that 

they are subject to the doctrines of waiver, equitable tolling, and estoppel. Id. at 1103–04; Steele 

v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008) (stating that failure to comply with the 45-day 

limit bars review “absent a basis for equitable tolling”); Williams v. Brennan, 320 F. Supp. 3d 

122, 127–28 (D.D.C. 2018), aff’d, No. 18-5256, 2019 WL 669716 (D.C. Cir. Feb. 12, 2019) 

(discussing Doak, 798 F.3d at 1103–04) (describing how “statutory and administrative 

exhaustion requirements” have distinct jurisdictional consequences). “The initial burden of 

establishing a plaintiff’s failure to exhaust administrative remedies rests with the defendant; the 

plaintiff, however, has the burden of demonstrating that equitable tolling is warranted.” Foster v. 

Gonzales, 516 F. Supp. 2d 17, 22 (D.D.C. 2007) (internal citations omitted). 

B. The October 2016 Disqualification 

The primary dispute between the parties at this stage is whether Andueza has complied 

with the relevant procedure by contacting an EEO officer within 45 days of the alleged 

discriminatory act. Andueza first contacted an EEO counselor on April 30, 2020. See EEO 

Compl. The Government maintains that the sole discriminatory act alleged in the Complaint is 

Andueza’s disqualification from the Special Agent application process, which occurred in 

October 2016—making his initial contact with EEO several years too late. See Def. Mot. at 5; 
8 

Reply at 3. The Government also contends that Andueza’s waiver request was an internal

method of review that does not toll or extend the 45-day period. Reply at 6. Andueza argues 

that the October 2016 decision was never final, and that his waiver request was instead an 

integrated part of the same application, which remains undecided to this day. Opp’n at 8–11. 

1. Finality of the Decision

“An aggrieved person must initiate contact with a Counselor within 45 days of the date of 

the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the 

effective date of the action.” 29 C.F.R. § 1614.105(a)(1). That clock begins to run “when the 

aggrieved ‘knew, or should have known, about the alleged discriminatory action.’” Gonzalez v. 

Clinton, No. 9-cv-1026, 2011 WL 13273217, at *3 (D.D.C. June 24, 2011) (quoting Stewart v. 

Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003)). Andueza knew upon receipt of the October 2016 

letter that he had been disqualified from the Special Agent process and that his color vision 

deficiency was the reason for his disqualification. Compl. ¶ 8. Therefore, to the extent that his 

EEO complaint challenged his disqualification in October 2016, it was several years too late. 

It is settled law that “the pendency of a grievance, or some other method of collateral 

review of an employment decision, does not toll3

 the running of the limitations periods.” Del. 

State Coll. v. Ricks, 449 U.S. 250, 261 (1980). Andueza argues, however, that his March 2017 

waiver request extended the application process itself rather than collaterally reviewing it, 

meaning the October 2016 decision was never final. Opp’n at 10–11. The Court determines that 

3

 The Court takes care to note that Andueza argues that the October 2016 decision was 

never final, not that the waiver request tolled the 45-day time limit. Nor could he––not only is 

that argument squarely foreclosed by the precedent in Ricks cited above, Andueza submitted the 

waiver request in March 2017, Compl. ¶ 9, already more than 45 days after the October 2016 

letter. But because the cases on tolling contain relevant analysis on the issue of finality and are 

discussed at length by the parties, the Court considers them here for that purpose. 
9 

neither the relevant case law nor the allegations in the Complaint support that characterization of 

the October 2016 decision. 

As a general matter, knowledge of a discriminatory decision starts the clock for statute of 

limitations purposes despite the existence of procedures that may change the ultimate outcome. 

In Ricks v. Delaware State College, a professor was informed that he would not receive tenure 

and that his teaching contract would expire the following year. 449 U.S. at 252–53. The 

Supreme Court determined that “the only alleged discrimination occurred—and the filing 

limitations periods therefore commenced—at the time the tenure decision was made and 

communicated to Ricks . . . even though one of the effects of the denial of tenure . . . did not 

occur until later.”4 Id. at 258. The Court treated the letter denying tenure as a final employment 

decision even though that very letter “explicitly held out to Ricks the possibility that he would 

receive tenure if the Board sustained his grievance,” id. at 260, reasoning that “[t]he grievance 

procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that 

decision before it is made,” id. at 261 (emphasis in original). 

The Government’s citation to Foster v. Gonzalez, 516 F. Supp. 2d 17, is likewise 

persuasive. In Foster, an employee received a letter terminating his employment effective 

immediately, but argued that his pursuit of an internal appeal which allowed for independent 

factual redeterminations made that letter a “non-final” decision. Id. at 23 & n.4. The court 

disagreed, pointing out that the regulation required contact “within 45 days of the effective date 

of the action,” and his termination had undisputedly become effective when he received the 

4 Ricks involved a deadline for filing an EEOC complaint under 42 U.S.C. § 2000e-5(e) 

rather than the 45-day time limit for contacting EEO here. Ricks, 449 U.S. at 256. Because the 

45-day time limit functions like a statute of limitations, see Doak, 798 F.3d at 1104, the same 

underlying principles apply. 
10 

letter. Id. at 23 (quoting 29 C.F.R. § 1614.105(a)(1)) (emphasis in original). Moreover, even if 

the appeal could have reinstated Foster, “the denial of an appeal” is not “a fresh act of 

discrimination that triggers the 45-day deadline anew.” Id. (internal quotations omitted). 

Nor was the Foster court swayed by the policy consideration that “a favorable decision 

on his internal appeal might have mooted completely the need to pursue a Title VII remedy.” Id. 

at 25.5

 While true, “the Supreme Court confirmed that Title VII and internal grievance 

procedures should be undertaken concurrently even though the pursuit of both could lead to 

conflicting results,” and “the application of Title VII requirements should not vary depending 

upon whether a claimant chooses to pursue voluntary internal appeals.” Id. This logic likewise 

applies to Rehabilitation Act claims raising discrete acts of discrimination (such as the medical 

disqualification) which are governed by the same regulation. See Roberts, 2020 WL 1892057, at 

*7 (“[U]nder both the Rehabilitation Act and Title VII . . . the standards for analyzing whether 

[the plaintiff] has exhausted administrative remedies is the same . . . .”). 

Andueza places great weight on the phrase “collateral review” in Ricks, Foster, and other 

cases, contrasting his waiver request as part of an “integrated” process.

6

 See Opp’n at 10–11 & 

5

 To be sure, Andueza raised the same issue—disqualification on the basis of his color 

blindness—in both the EEO complaint and the waiver request, unlike the distinct issues in 

Foster’s internal appeal and his Title VII claim. See Opp’n at 9–10. But contrary to Andueza’s 

assertion, id., that was not the dispositive reason that the two processes should have run 

concurrently in Foster. Rather, it was because “[t]he two remedies ‘have legally independent 

origins and are equally available to the aggrieved employee.’” Foster, 516 F. Supp. 2d at 24 

(quoting Int’l Union of Elec., Radio & Mach. Workers v. Robbins & Myers, Inc., 429 U.S. 229, 

236 (1976)). 

6

 Andueza’s Motion for Leave to File a Surreply seeks to respond to the discussion of 

Ricks that appears in the Government’s Reply brief. Pl.’s Mot. Leave to File Surreply (“Surreply 

Mot.”), ECF No. 12. A court determining whether to allow a surreply considers whether the 

reply raises new arguments, whether the proposed surreply would be helpful to the resolution of 

the pending motion, and whether the other party would be unduly prejudiced. Glass v. Lahood, 

786 F. Supp. 2d 189, 230–31 (D.D.C. 2011). “[T]he determination of whether to grant or deny 

leave is entrusted to the sound discretion of the district court.” Id. at 231. The Government’s 
11 

n.5. But this is ultimately a distinction without a difference. Andueza does find some support 

for this reasoning in Harris v. Ladner, 127 F.3d 1121 (D.C. Cir. 1997). See Opp’n at 10. In 

Harris, a professor was notified of a negative tenure decision, but the court determined that it 

was not a final decision until after she had passed through the reconsideration process. 127 F. 3d 

at 1124. The key to this holding, however, was not that the reconsideration was a direct rather 

than collateral review, but that the university “conceded during oral argument [that] those 

procedures provide for reconsideration before the final decision”—meaning that the decision 

itself was never final. Id. (emphasis in original). The FBI makes no such concession here. 

The Court is similarly unconvinced by the dicta in Truelove v. Trs. of the Univ. of D.C., 

744 F. Supp. 307 (D.D.C. 1990). The holding in Truelove was that the Title VII statute of 

limitations ran from the date that Truelove had been notified of a negative evaluation. Id. at 311. 

But the court also observed that Truelove “declined to file a direct appeal of his evaluation,” and 

as a result “because any review instigated by his actions would be collateral and conducted 

outside the formal appeals process, it would not toll the commencement of the limitations 

period.” Id. Still, that does not necessarily mean that the outcome would have been different if 

Truelove had filed a “direct” appeal rather than a “collateral” one. See Opp’n at 11. Indeed, in 

Ricks, the employee did appear to follow the proscribed internal procedures for direct review, but 

the Court still referred to the grievance as “collateral.” Ricks, 449 U.S. at 252. 

discussion of Ricks responded to Andueza’s already well-developed argument about whether his 

waiver request was “collateral.” See Opp’n at 10–11. While Andueza may take issue with the 

Government’s selective quotation of Ricks, that does not make the Government’s argument 

“new” such that he requires an opportunity to respond. See id. Nevertheless, because the Court 

disagrees with Andueza on the merits of this argument, it would reach the same result either way. 

The Court therefore grants the motion and will deem the proposed surreply, which was attached 

as an exhibit to the Surreply Motion, filed. 
12 

Collectively, these cases suggest that the label of an internal process as a grievance, an 

appeal, a reconsideration, a waiver, or some other term is less important than its function: 

whether it seeks to change a decision that has already been made. See Gonzalez, 2011 WL 

13273217, at *5 (“Where the plaintiff alleges that the employer promised to reconsider a 

decision, the inquiry becomes did the ‘reconsideration’ constitute ‘a remedy for a prior decision, 

[or] an opportunity to influence that decision before it [wa]s made.’”) (quoting Ricks, 449 U.S. at 

261). The Court concludes that the function of Andueza’s March 2017 waiver request was to 

remedy a decision that had already been made in October 2016. 

First, the language of the procedure for requesting a waiver—submitted by Andueza as 

part of the EEO record—indicates that it is a safeguard for reviewing or overriding a medical 

disqualification, not for influencing it in advance. Pl. ROI at 14 (policy stating that “[a]pplicants 

deemed medically disqualified for the SA position may submit appeals in writing”). The 

existence of that waiver procedure, and even the FBI’s “willingness to change its prior decision” 

if needed, “does not suggest that the earlier decision was in any respect tentative.” Ricks, 449 

U.S. at 261. 

Next, the Medical Officer’s decision disqualified Andueza from the Special Agent 

application process in no uncertain terms. The language of the letter was final, including a 

recognition that “[w]e understand this determination is a disappointment to you.” Pl. ROI at 15. 

Andueza also appeared to understand the communication as having a final and immediate effect, 

describing its content in his waiver request as “stating why I cannot continue with the FBI 

Special Agent process” and noting that it lacked instructions for “how [to] appeal the decision.” 

Id. at 17. Even the Complaint characterizes the communication as an unequivocal decision, 

saying Andueza was notified “that an FBI medical officer had determined he suffered from 
13 

‘color blindness’ and would therefore be unable to safely perform the essential tasks of the 

Special Agent position.” Compl. ¶ 8. While a court deciding a motion to dismiss must draw 

reasonable inferences in the plaintiff’s favor, Stewart v. Nat’l Educ. Ass’n, 471 F.3d at 173, a 

complaint cannot be amended through an opposition to a dispositive motion, Arbitraje Casa de 

Cambio, S.A. de C.V. v. USPS, 297 F. Supp. 2d at 170. Andueza’s recharacterization of the 

October 2016 letter as lacking finality attempts to do the latter. See Opp’n at 9–10. Thus, to the 

extent that Andueza challenges the October 2016 decision as discriminatory, his pursuit of 

administrative remedies was untimely. 

2. Agency Waiver 

Andueza also argues that the FBI has waived any objections to its exhaustion argument 

before this Court by accepting his EEO complaint as timely in June 2020. See Opp’n at 12–13. 

The failure to comply with the regulatory procedures for administrative exhaustion are nonjurisdictional and can be waived by the agency. See Doak, 798 F.3d at 1103–04 (holding that an 

agency waived any untimeliness when it “not only accepted and investigated Doak’s complaint, 

but also decided it on the merits”) (cleaned up). The FBI did accept and begin to investigate the 

EEO complaint. See Pl. ROI at 5 (stating in the letter acknowledging his EEO complaint that the 

agency had “accepted for investigation” the issue of whether the failure to respond to the waiver 

request “from March 2017 to the present” was discriminatory7

). But it does not necessarily 

follow that the “FBI concluded the complaint was timely,” as Andueza claims. Opp’n at 12. 

7

 This language could also imply that the FBI waived the potential untimeliness relating 

to the handling of the waiver request, but not the initial disqualification. Because the Court 

concludes that the FBI has not met its burden of showing failure to exhaust for that latter act of 

discrimination, see infra Section III.D.3, it is unnecessary to address any potential equitable 

waiver argument relating to the handling of the March 2017 request at this time. 
14 

Unlike the EEO complaint in Doak, which the agency had resolved on the merits, the FBI 

has not issued any opinion in this case. See Doak, 798 F.3d at 1103–04. “[A]gencies do not 

waive a defense of untimely exhaustion merely by accepting and investigating a discrimination 

complaint;” they must also address it on the merits. Bowden v. United States, 106 F.3d 433, 438 

(D.C. Cir. 1997); see also Nurriddin v. Bolden, 674 F. Supp. 2d 64, 86–87 (D.D.C. 2009) (“[T]he 

rationale of Bowden rests primarily on the agency having responded to the employee’s claim on 

the merits during the administrative process”); Tumblin v. Barr, No. 19-cv-2204, 2020 WL 

7078826, at *3 (D.D.C. Dec. 3, 2020) (finding that the 45-day limit was not waived where the 

agency accepted a claim for investigation and only raised untimeliness in the “final agency 

decision” and “its first substantive motion in this litigation”). Nor does the text of the 

regulations preclude an agency from accepting a complaint for investigation and then later 

dismissing it for untimeliness—to the contrary, an agency can either dismiss a complaint for 

untimeliness or “extend[] the time limits” at any point “[p]rior to a request for a hearing.” 29 

C.F.R. § 1614.107. Andueza does not allege that either of these actions have occurred, merely 

that he “presented a timely EEO complaint” in the first instance. See Compl. ¶ 15. This type of 

bare assertion is exactly the kind of “legal conclusion[] . . . couched as factual allegation[]” that 

the Court need not presume to be true. Twombly, 550 U.S. at 555. Without any facts that would 

give rise to an inference of waiver, the Court cannot conclude that the FBI waived Andueza’s 

failure to exhaust any potential discrimination in the October 2016 decision. 

C. The March 2017 Waiver Request as a Separate Discriminatory Act 

 Yet that does not entirely end this inquiry. “A party must exhaust . . . administrative 

remedies for each discrete act of discrimination or retaliation alleged or lose the ability to 

recover for it.” Bell v. Donley, 724 F. Supp. 2d 1, 8 (D.D.C. 2010) (emphasis added) (citing 
15 

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–15 (2002)). Although Andueza failed 

to exhaust administrative remedies to challenge his 2016 disqualification, the Complaint also 

alleges a second discriminatory action: the failure to respond to Andueza’s waiver request in 

2017. 

1. Sufficiency of the Allegations Asserting a Second Discriminatory Action 

The Government disagrees that a second act of discrimination had been alleged in the 

Complaint or raised before the agency. See Def. Mot. at 5; Reply at 3. But the Court agrees with 

Andueza that “the complaint describes Mr. Andueza’s previously-discussed request for waiver or 

appeal in March 2017 and describes in subsequent paragraphs a still pending process.” Opp’n at 

9. It also includes specific factual allegations that the failure to respond to the waiver request 

was directly related to Andueza’s disability of color vision deficiency. See Compl. ¶ 12 (“Dr. 

Snyder acknowledges that there has been discussion about developing an individualized 

assessment for Special Agent applicants with a color vision deficiency. That this is still missing 

from the FBI’s protocol is at odds with the FBI’s legal duty to individually assess all 

applicants.”); id. ¶ 13 (“[T]he FBI has left these applicants in what it candidly admits is the ‘legal 

color-vision limbo.’”).8

 

8

 Although the Government is correct that the denial of an appeal is not a new act of 

discrimination, an appeal can be discriminatory in its own right if it proceeded differently for an 

aggrieved applicant on the basis of a protected characteristic than for other individuals 

undergoing the same process. See Ricks, 449 U.S. at 258 (“In order for the limitations periods to 

commence with the date of discharge, Ricks would have had to allege and prove that the manner 

in which his employment was terminated differed discriminatorily from the manner in which the 

College terminated other professors who also had been denied tenure.”). Acknowledging that 

Andueza’s 2017 request was both a request for accommodation and an appeal, the facts in the 

Complaint still suggest that the appeal was discriminatory by alleging that the FBI has treated 

waiver requests from individuals with color vision deficiency differently than other medically 

disqualified applicants. See Compl. ¶¶ 12–14. 
16 

Andueza’s March 2017 email “asked for a waiver” in order to continue with the Special 

Agent application process, and he provided specific information regarding the effectiveness of a 

corrective lens when requested as a follow up. Compl. ¶¶ 9–10. These facts properly relate to 

Andueza’s alleged claim for failure to accommodate under the Rehabilitation Act. See Compl. 

¶ 17 (“Defendant failed to accommodate his disability, even though it would have been quite 

easy to do so.”). Federal agencies have an obligation to adopt reasonable accommodation 

processes that, among other things, “[d]esignate the maximum amount of time the agency has . . . 

to either provide a requested accommodation or deny the request,” 29 C.F.R. 

§ 1614.203(d)(3)(i)(M), and explain that even prior to that maximum, “failure to provide the 

accommodation in a prompt manner may result in a violation of the Rehabilitation Act,” id. at 

§ 1614.203(d)(3)(i)(O). 

An agency’s obligation to offer reasonable accommodation under the Rehabilitation Act 

involves “a flexible give-and-take between employer and employee” that requires good faith on 

both sides. Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (internal quotations omitted). 

“The request for accommodation does not have to be formal, and the words ‘reasonable 

accommodation’ do not have to be used, but the employer must be alerted to the condition and 

the need for accommodation.” Thompson v. Rice, 422 F. Supp. 2d 158, 176 (D.D.C. 

2006), aff’d, 305 F. App’x 665 (D.C. Cir. 2008); see also Taylor v. Phoenixville Sch. Dist., 184 

F.3d 296, 313 (3d Cir.1999) (“[T]he notice does not have to be in writing, be made by the 

employee, or formally invoke the magic words ‘reasonable accommodation’ . . . .”). 

Andueza’s waiver request satisfied that notice requirement. The FBI knew of Andueza’s 

color vision impairment and Andueza made his desire for an accommodation of that impairment 

clear. See Pl. ROI at 17 (stating in the email to the HR Director “I am respectfully requesting a 
17 

waiver from your behalf so I can continue with the FBI Special Agent Application process. I 

have attached a letter addressed to you which provides background on myself and my current 

situation [and] a letter from an optometrist . . . .”). Plus, Andueza followed the exact process 

recommended by the FBI headquarters. See id. (“[M]y applicant coordinator had to call FBI 

headquarters for this information and they advised to write a letter addressing you requesting a 

waiver.”). Finally, the response from HR Assistant Director Schlendorf both acknowledged the 

disability and manifested the interactive process for finding a reasonable accommodation by 

requesting more information, see id. at 18 (“Please provide some additional details, and any 

supporting documentation, regarding your experience with performing the Special Agent 

essential tasks related to vision . . . . Please provide any details and documentation you have 

regarding your use of the Enchroma lens . . . .”), which Andueza provided, see Compl. ¶ 10. 

“A party that obstructs or delays the interactive process [or] fails to communicate, by way 

of initiation or response” does not act in good faith. Ward v. McDonald, 762 F.3d at 32 (quoting 

(EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir.2005)). In addition, “unreasonable 

delay in implementing a ‘reasonable accommodation’ can constitute a discriminatory act.” See 

Krocka v. Riegler, 958 F. Supp. 1333, 1342 (N.D. Ill. 1997) (an eight-month denial of a change 

in shift was a failure to accommodate); Hill v. Clayton Cnty. Sch. Dist., 619 F. App’x 916, 922 

(11th Cir. 2015) (a two-month wait for an air-conditioned bus); Pierce v. Nat’l Archives & Recs. 

Admin., No. 19-cv-2876, 2020 WL 7640835, at *2 (D. Md. Dec. 23, 2020) (16 months and 

multiple denials before a requested accommodation was granted). At this stage, Andueza’s 

allegation that the FBI has left him in limbo for over two years since he provided the requested 

information in June 2019, and over four years in total, plausibly alleges such unreasonable delay. 
18 

2. Exhaustion of the 2017 Waiver Request Claim 

Because the failure to process the 2017 waiver request was a separate act of 

discrimination, Andueza also had an obligation to exhaust it. Morgan, 536 U.S. at 114–15. In 

tandem with its assertion that the Complaint alleges only one discriminatory act, the Government 

argues that Andueza only complained to the FBI about his initial disqualification. See Def. Mot. 

at 5. The Government attaches the agency’s EEO complaint form to its motion in support of this 

point, noting that Andueza had complained that “[i]n October 2016 FBI Human Resources 

Division (HRD) disqualified me from the Special Agent (SA) process.” EEO Compl. But the 

very next sentence of that document states that “I requested a waiver from HRD . . . but as of 22 

June 2020 I have not heard anything back” and alleges that Andueza was “treated differently” 

because “the Bureau does allow SA applicants who have some degree of colorblindness to 

become SAs.” Id. That language describes two discriminatory acts.

When determining whether administrative exhaustion was timely, courts generally begin 

by “analyz[ing the] Plaintiff’s claims to determine whether they fall into the category of discrete 

or ongoing discriminatory acts.” Gordon v. Napolitano, 786 F. Supp. 2d 82, 84 (D.D.C. 2011). 

The Supreme Court has likewise differentiated between discrete acts, which must each be 

exhausted even if they are part of a pattern, and hostile work environment claims, which by 

“their very nature involve[] repeated conduct.” Morgan, 536 U.S. at 115. Usually, failure-toaccommodate claims fall into the former category, because there is a specific moment when an 

accommodation was denied. See, e.g., Roberts, 2020 WL 1892057, at *7 (finding a failure-toaccommodate claim untimely where the employee did not comply with the 45-day deadline); 

Gulakowski v. Barr, 19-cv-32, 2019 WL 4469241, at *5 (D.D.C. Sept. 18, 2019) (treating 

failure-to-accommodate claim as a discrete act that was time-barred by the 45-day limit). 
19 

However, courts have sometimes recognized ongoing patterns of discrimination outside of the 

narrow confines of hostile work environment, such as when there is a pattern of retaliation. See 

Nguyen v. Mabus, 895 F. Supp. 2d 158, 184 (D.D.C. 2012) (treating the continued exclusion of 

an employee from certain budgetary meetings as an ongoing retaliatory harm). 

The ongoing failure to provide an accommodation—or at least an individualized 

assessment denying it—does not fit neatly into either category. But as the regulations and case 

law regarding delay on reasonable accommodation requests suggest, an agency cannot avoid its 

obligations by opting out of decision-making altogether. Ward v. McDonald, 762 F.3d at 32 (“A 

party that fails to communicate” regarding reasonable accommodation requests may violate the 

Rehabilitation Act) (quoting EEOC v. Sears, Roebuck & Co., 417 F.3d at 805). At the time 

Andueza contacted the EEO officer in 2020, his request was still pending before the FBI, and the 

FBI had repeatedly failed to meaningfully communicate about the status of his request. See 

Compl. ¶ 10; EEO Compl. And when Andueza presented that claim, the agency appears to have 

treated the failure to respond, rather than the initial disqualification, as the “ongoing violation” 

that it agreed to investigate. Pl. ROI at 5 (accepting for investigation “whether complainant was 

discriminated against . . . when, from March 2017 to the present, the Human Resources Division 

has not responded to his Special Agent waiver request).9

 

Andueza’s briefing on this point leaves much to be desired—to the point that it borders 

on waiving the argument. See Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[I]t 

is not the obligation of this Court to research and construct the legal arguments available to the 

9

 As described above, that does not necessarily mean that the FBI determined the 

complaint was timely such that it waived exhaustion. But because the Government has failed to 

meet its burden of showing that the Complaint was untimely at all, the Court need not decide that 

here. 
20 

parties.”) (cleaned up). Nevertheless, failure to exhaust administrative remedies is an affirmative 

defense, which should only resolve a Rule 12(b) motion “when the facts that give rise to the 

defense are clear from the face of the complaint.” Smith-Haynie, 155 F.3d at 578; see also 

Mondy v. Sec’y of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., 

concurring) (“[F]ailure to exhaust administrative remedies is an affirmative defense, and 

therefore [the plaintiff] was not required to anticipate it in his complaint.”); Nurriddin, 674 F. 

Supp. 2d at 86 (denying a motion to dismiss where “defendants have failed to establish, on the 

present record, that plaintiff failed to exhaust his administrative remedies”). 

Here, it is not clear from the Complaint or the attached documents that Andueza failed to 

exhaust administrative remedies regarding this second alleged act of discrimination. Because the 

Government has not met its burden of showing that Andueza failed to exhaust administrative 

remedies for his claim that the FBI failed to accommodate his disability by failing to respond to 

the waiver request, his lawsuit may proceed for that claim alone. 

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED in part and 

DENIED in part and Plaintiff’s Motion for Leave to File a Surreply is GRANTED. An order 

consistent with this Memorandum Opinion is separately and contemporaneously issued. 

Dated: November 9, 2021 RUDOLPH CONTRERAS

United States District Judge