UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) EKATERINA A. U ZLYAN , ) ) P laintif f, )

) v. ) Civil Action No. 09-1035 (RMC) ) HILDA L. S OLIS , Secre tary of Labor, ) ) Defendan t. ) )

MEMORAN DUM OP INION Hilda L

. Solis , Secre tary of the United States Depa rtment of L abor (“D OL ”), who is sued in her officia l capa city only , responds to the Complaint filed by Ekater ina A. Uzly an with a partial motion to dismiss

. See Def .’s Mot. To Dismiss [Dkt. # 8]. Ms. Uzly an, former ly a Pension L aw Specialist in DOL ’s Employ ee Be nefits Security Administration, alleg es discrimination based upon her mental and phy sical disabiliti es, national orig in (Russian), g ender (fe male), and/or repr isal for eng ag ing in protec ted activity

. She has moved for full discovery befor e considera tion of DOL ’s motion. See Pl.’s Mot. For Discove ry [Dkt. # 12] . Howeve r, finding that cer tain of Ms. Uzly an’s claims are barr ed by a prior settlement ag ree ment and others wer e n o t perf ecte d throug h the administrative proce ss, none of which require s discovery , the Court will g rant DOL ’s motion in part and deny it in part, and will deny

Ms. Uzly an’s r equest for discovery

. I. F ACTS Ms. Uzly an, a native of Russia, ear ned two deg ree s from J ohns Hopkins University befor e she joined DOL in May 1988. Whil e her first position was that of Resear ch Analy st, she has spent the bulk of her car eer serving as a Pension L aw Specialist in the Employ ee Be nefits SecurityAdministration. On J une 27, 2005, Ms. Uzly an filed an informal complaint of discrimination ag ainst the Em ploy ee Be nefits S ecur ity Administration. She rea ched ag ree ment to res o l v e her complaint and a g rieva

nce by way of set tlement dated Aug ust 12, 2005. As rele vant here , that settlement ag ree ment had two provisions that DOL argues bar Ms. Uzly an from proce eding in this Court on any employ ment-re lated matter

that prec edes A ug ust 12, 2005: 1. Rights of Complainant [Ms. Uzlyan] upon withdraw al The C o m p l ainant here by withdraws, with prejudice to the rig ht to ref ile I nformal [si c] comp l ai nt (I M05-11-173) dated J une 27, 2005 and her Union g rieva

nce filed J uly 1, 2005; and all other complaints, g rieva nces, appea ls, lawsuits, and other cause s of action that she has o r may have ag ainst the U.S. Depa rtment of L abor, its officia ls, o r employ ee[s], both prese nt and former , both per sonally and in their officia l capa cities, rela ting to the fac ts and circ umstances which g ave rise to this informal complaint. H o w ever , the Complainant reta ins the rig ht to reinstate this complaint should [t he Employ ee Be nefits Security Administration] or the Depa rtment fail to fulfill the terms of the ag ree ment in acc ordanc e with 29 CFR 1614.504. 2. Non-initiat ion of another action The Complainant ag ree s that she will not initiate any complaints, g rieva nces, appea ls, lawsuits, or cause s of acti o n ag ainst the Depa rtment or ag ainst any

prese nt or former officia l or employ ee of the Depa rtment, either persona lly or in his or her officia l capa city , relating to the fac ts and circ umstances which g ave rise to this informal complaint. Def .’s Notice of Filing (“D ef.’ s Notice” ) [Dkt. # 7], Ex

. 2 (Settlement Ag ree ment). On Fe bruar y 6, 2006, Ms. Uzly an filed an informal complaint of discrimination alleg ing that the Employ ee Be nefits Se c u r it y A d minist ration brea ched the settlement ag ree ment. The DOL Civil Rig h ts Ce n te r d is mi s s e d the complaint on Dec ember 21, 2005, finding that no b re ac h h ad occur red. Def .’s Noti ce, Ex

. 14

-2-(De c. 21, 2005 L etter from Civil R i gh t s C en t er ). Ms. Uzly an later filed an appea l with the Equal

Employ ment Opportunity Commi ssion (“EE OC”) Offic e of Federa l Oper ations. The Offic e of Fe dera l Oper ations held that the Employ ee Be nefits Securit y Ad m i n i stration had not violated the settlement ag ree ment by removing Ms. Uzly an from the Flexiplace prog ram once her perf ormanc e 1 fell below the “fully succe ssful” st andar d. Def .’s Notice, E x . 15 (May

23, 2007 Offic e of Fe dera l Oper ations Dec ision). Notified that she had 90 day s to file suit in fede ral court, id. , Ms. Uzly an did not further

pursue the matter. On Dec ember 5, 2005, Ms. Uzly an filed a fo r ma l c o mp la in

t o f d is c r im ina

tion alleg ing disparate trea tment based upon her g ender , national orig in, disability (per ceive d limp), and repr isal for participa ting in pr otected activity

. This be came Civil Rights Center Case No. 06- 11-022. The Civil Rights Center acc epted fourtee n issues fo r i n v es t i g ation. Ms. Uzly an filed an additional complaint of discrimination, on the same protec ted bases, on Marc h 26, 2007, which beca me Civil Rights Center Case No. 07-11-058. After eac h complaint was investigated by the C i v il Rights Center, Ms. Uzly an asked for a hear ing befor e an EEOC Administrative J udg e. Be fore the hear ing, howeve r, by letter dated October 18, 2007, Ms. Uzly an, throug h her attorney , waived all but ten of h er outstanding claims for adjudication. See Def .’s Notice, Ex

. 8 (Oc t. 18, 2007 L ett er ). T h e Administrative J udg e allowed a subsequent amendment on J anuar y 11, 2008, adding one additional claim. See Def

.’s Notice, Ex

. 9 (Jan. 11, 2008 Orde r). The Administrative J udg e merg ed both case s and all eleve n (11) claims for adjudication in a single hear ing, which occur red over three day s in Aug ust 2008. The spec ific issues adjudicated at the he aring wer e:

Whether, in violation of Title VI I of the Civil Rights Act of 1964, as A prog ram a llowing e mploy ees to wor k at home and ha

ve fle x ible hours. 1 -3-amende d, 42 §§ U.S.C. 2000e-2000e -1 7 (“ Title VI I ”), the Ag e Discrimination in Employ ment Act, 29 U.S.C. §§ 621-633a (“A DEA” ), and the Re h a

bilitation Act of 1973, as amende d 29 U.S.C. §§ 706, et seq. (“Reha

bilitation Act”) , the U.S. Depa rtment of L abor discriminated ag ainst Ekater ina A. Uz ly an (“Complainant”) based upon her sex (fe male), ag e (d.o.b. 4/9/64), disability (mental; brac hial plexus palsy

), national orig in (Russian), i n re p risal (prior EEO activity ) and subjected Complainant to a hostile work environment[.] Def .’s Notice, E x . 10 (Mar ch 25, 2009 EEOC Dec ision) a t 1. In deter

mining whether Ms. Uzly an

was subject to a hostile work en v i ro n m ent, the Administrative J udg e considere d sever al specific incidents, including, among others, the Employ ee Be nefits Security Administration’s denial of Ms. Uzly an’s attempts to rec eive “deta il assig nments,” the remova l of Ms. Uzly an from the “F lexi place ” prog ram, and the require ment that Ms. U zl ya n “docume nt her work while on Flexiplace in 15-minute incre ments.” Id. at 1-2. The Administrative J udg e issued a Final Orde r on Marc h 25, 2009, in which he deter mined that the Employ ee Be nefits Security A d mi n is tr a ti o n h ad not discriminated ag ainst Ms. Uzly an. Id. at 18.

I n the meantime, on Ma

y 28, 2008, Ms. Uzly an filed f ormal Complaint No. 08-11- 090, alleg ing disc rimination based upon g ender (fe male), national orig in ( Russian), ag e, disability (bra chial plex us palsy in her lef t hand and wrist and major depre ssion) and retaliation based upon previous EEO a ctivity . The Civil Ri g hts Center ac cepte d the following issues for investig ation:

Whether the Employ ee Be nefits S ecur ity Administration (EB SA) discriminated ag ainst Complainant based on her sex (F emale) , ag e (44 y ear s of ag e), national orig in (Rus s ia n ) , disability (bra chial plexus palsy in her left hand and wrist, and major depre ssion), and/or in repr isal for prior EEO activity by alleg edly subjecting her to a “hostile work e nvironment,” whic h include[d] : g iving her “unsatisfa ctory ” perf ormanc e evaluations, “[s] lander ing her to co-w orker s and manag ement staff,” and “[d] enying her rea sonable acc ommodation re q u es t for Flexiplace and a

-4-transfe r to another office ,” among other things. Def .’s Notice, Ex

. 12 (EEO I nvestig ation Report for Case No. DO L -08-11- 090).

On April 20, 2009, Ms. Uzly an filed her final formal complaint of discrimination by Employ ee Be nefits Security Administration, alleg ing that the same protec ted classes prompted her discharg e on Oc tober 17, 2008, and that her f ormer supe rvisor and the ag ency EEO Mana g er both blocked her d isability retire ment application on J anuar y 2, 2009, and Fe bruar y 10, 2009, respe ctively

. This beca

me Civil Rights Center Case No. 09-11-056. The C i vil Rights Center dismiss ed the termination claim beca use it had alre ady been asser ted in Civil Rights Center Case No. 08-11-090, a

nd dismiss ed the disability retire ment claim for f ailure to state a

claim pursuant to 29 C.F.R. § 1614.107(a) (1). See Def .’s Noti ce, Ex

. 13 (May 13, 2009 L etter declining to investigate claims). Ms. Uzly an filed this lawsuit on J une 3, 2009. DOL now moves to dismiss. II. LEGAL STANDARDS A. Rule 12(b)(1) When revie wing a mot ion to dismiss for lack of jurisdiction under Fede ral Rul e of Civil Procedur e 12(b)( 1), a court must revie w the complaint liberally , g ranting th e p l ai ntiff the benef it of all infere nces that can be derive d from the fac ts alleg ed. Barr v. Clint on , 370 F. 3d 1196, 1199 (D.C. Cir. 2004). To deter mine whether it has jurisdiction over the claim, a court may consider materia ls outside the pleading s. S et t l es v. U.S. Parole Comm’n , 429 F.3d 1098, 1107 (D.C. Cir. 2 0 0 5 ). No action of the parties can confe r subject matter jurisdiction on a fede ral court becaus e subject matter jurisdiction is both a re q u irement under Article I I I of the U.S. Constit ution and a statutory require ment. Akinsey e v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003). The

-5-party claiming subject matter jur isdiction bears the bur den of de monstrating that such j urisdiction

exis ts. Khadr v. United States , 529 F.3d 1112, 1115 ( D.C. Cir. 2008).

B. Rule 12(b)(6) A motion to dismiss pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6) challeng es the adequa cy of a complaint on its fac e, testing whether a plaintiff has proper ly s t at ed a claim. Fe dera l Rule of Civil Procedur e 8(a) require s that a complaint contain “a short and plain statement of the claim showing that the pleade r is e ntitled to relief .” Fe d. R. Civ. P. 8( a). A complaint must be sufficient “to give a defe ndant fair notice o f what the

. . . claim i s and the g rounds upon which it rests.” Bell Atl. Corp. v. Twombly , 550 U.S. 5 4 4 , 5 5 5 (2 007) (interna l citations omitted). Although a complaint does not ne ed detailed fac tual alleg ations, a plaintiff’s obligation to provide the g rounds of his entitlement to relief “re quires more than labels and conclusions, and a formulaic

rec itation of the elements of a cause of action will not do.” Id. The fac ts alleg ed “must be enoug h
to r aise a rig ht to relief above the specula tive level.” Id

. Rule 8(a) require s an actua l show ing and
not just a blanket asser

tion of a rig ht t o re l i ef

. Id. at 555 n.3. “[A] complaint needs some information about the c ircumstance s g iving r ise to the claims.” Aktieselsk abet Af 21. Nov. 2001 v. Fame J eans, Inc

. , 525 F.3d 8, 16 n.4 ( D.C. Cir. 2008) (empha sis in original). I n deciding a motion under Rule 12(b)( 6), a court may consider the fac ts alleg ed in the complaint, documents att ache d to the complaint as exhibi ts or incorporated by ref ere nce, and
matters about which the court may t ak e j u dicial notice. Abhe & Svoboda, Inc. v. Chao , 508 F.3d 1052, 1059 (D.C. Cir. 2007)

. To survive a motion to dismiss , a complaint must contain suffic ient fac tual matter, a cce pted as true, to sta te a claim for relief that is “plausible on its face .” Twombly , 550 U.S. at 570. When a plaintiff pleads fac tual content that allows the court to draw the rea sonable

-6-infere n ce t h at the defe ndant is liable for the misconduct alleg ed, then the claim has fac ial

plausibilit y . Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009). “The plausibilit y standard is not akin
to a ‘proba

bility require ment,’ but it asks for more than a sheer possibili ty that a defe ndant has acte d unlawfully .” Id

.

A court must trea t the complaint’s fac tual alleg ations as true, “eve n if doubtful in fac t.” Twombly , 550 U.S. at 555. But a court need not a cce pt a s true leg al conclusions set forth in a complaint

. Iq b a l , 129 S. Ct. at 1949. “Thre adbar e recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice .” Id

. “While leg al conclusions can provide the framework of a complaint, they must be supported by fac tual alleg ations. When there are wellpleade d fac tual alleg ati o n s , a court should assume their vera city and then deter mine whether they plausibly g ive rise to an e ntitlement to relief.” Id . at 1950. C. Rule 12(f) Rule 12(f) permits a court to “orde r stricken fr o m an y pleading any insufficient defe nse or any redunda

nt, immaterial, impertinent, or scanda lous matter.” Fe d. R. Civ. P. 12(f)

. A court ha s broad discr etion in ruling on a motion to s trike; howeve r, striking portions of a plea ding is a drastic reme dy , and motions to strike are disfavore d. Nwachukwu v. Karl , 216 F.R.D. 176, 178 (D.D.C. 2003); Makuc h v. FBI , Civ. No. 99-1094, 2000 U.S. Dist. L EXI S 9487, *3-5 (D.D.C. J an. 6, 2000). Although the Rule does not require the moving party to show that it would be prejudice d should the alleg ations rema in part of the pleading , “cour ts view motion s t o strike portions of a complaint with suc h disfavor that many courts will g rant such a motion only if the portions soug ht
to be st ricke n as i mmaterial are also prejudicia l or scandalous

. ” Ma ku ch , 2000 U.S. Dist. L EXI S 9487, at *7; W

iggins v. Phillip Morris, Inc. , 853 F. Supp. 457, 457 (D.D.C. 1994) (“[I ]f alleg ations

-7-in a complaint ar e irre levant and pr ejudicial to the def endant, a motion to s trike will be g rante d”). III. ANALYSIS There are three essential arguments advanc ed by DOL as to why numerous counts in the Complaint should be dismiss ed: 1) they preda te the Aug ust 2005 settlement ag ree ment and are there fore barr ed; 2) they wer e not raised in the administrative proce ss below and so cannot form the basis for any lawsuit; and 3) they are scanda lous, immaterial, or impertinent. Rule 12(b)( 1) applies
to arguments reg arding the settlement ag ree ment and failure to exhaust administ ra t i v e reme dies under the Rehabilitation Act, while Rule 12(b)( 6) applies to arguments reg arding failure to exhaust 2 under Title VI I

. Ru le 12(f) applies to arguments that particula r alleg ations are scanda lous or 3 impertinent. The Court will addre ss eac h arg ument in turn. A. August 2005 Settlem ent Agr eem ent Although Ms. Uzly an settled some issues in Aug ust 2005, they wer e clea rly limit ed to those that “re lat[ed] to the fac ts and circ umstances whic h g ave r ise to this informal complaint.” Def .’s Notice, Ex

. 2 (Settlement Ag ree ment). DOL argues that Parag raphs 12, 21, 22 and 23 of the Complaint should be dismiss ed beca use the fac ts and claims advanc ed in those para g raphs predate

Courts in t h i s d i strict have found that exhaustion under the Rehabilitation Act is a jurisdi ctional 2 require ment and, as such, cannot be waived or tolled. See Rand v. Geithner , 609 F. Supp. 2d 97, 100 (D.D.C. 2009) (“[I ]f a plaintiff fa ils to ex haust his or her Re habilitation Act claims as required by Section 501, the claims are subject t o dismiss al for lack of su b j ec t m at t er jurisdiction.”); Perry v. United States Dep’t o

f State , 669 F. Supp. 2d 60, 63-64 (D.D.C. 2009); Moore v. Schafer , 573 F. Supp. 2d 216, 219 (D.D.C. 2008). Whil e there is some dispute reg arding the proper standard, the rec ent trend in this district is to trea t 3 failure to exhaust under Title VI I as a failure to state a claim rathe r than as a jurisdictional defic iency

. See, e .g., W

illiams-Jones v. Lahood , 656 F. Supp. 2d 63, 66 (D.D.C. 2009); Marshall v. Honey well Tech. Solutions, Inc ., 536 F. Supp. 2d 59, 64 n. 6 (D.D.C. 2008); C r u z -P a ck er v. District of Columbia , 539 F. Supp. 2d 181, 190 (D.D.C. 2008); Marce lus v. Corr. Corp. of Am. , 540 F. Supp. 2d 231, 234-35 (D .D.C. 2008). -8-Aug ust 2005 and cannot now be revive d. DOL also notes that Ms. Uzly an complained to the Offic e 4 of Fe dera l Oper ations that the Depa rtment brea ched the settlement ag ree ment by removing her from the Flexiplace prog ram but then waived further action when she did not timely appea l the dismiss al of that cla im. The iss ue invol ved in Ms. Uzly an’s J une 2005 informal c o m p laint was “[w] hether [t he Employ ee Be nefits Security Administration] discriminated ag ainst Ms. Ekater ina Uzly an on the basis of Sex , National Orig in and repr isal when she was alleg edly hara ssed by her supervisor and a L et ter of Reprimand was place d in her personne l folder.” Pl.’s Mem. in Opp’n to Def .’s Mot. to Dismiss (“ Pl.’s Opp’ n”) [Dkt. # 13], Ex

. K (EEO Counselor’s Summary Report). Ms. U zly an and DOL completely settled “the fac ts and circ umstances which g ave rise” to this informal complaint. See Def .’s Noti ce, Ex

. 2 (Settlement Ag ree ment). Ms . Uzly an did not otherwise waive any rig hts to complain about treatment by the Employ ee B enef

its S ecur ity

Administration. As to ¶ 22 of the Complaint, howeve r, Ms. Uzly an now acknow ledg es that part of it should be dismiss ed, i.e. , the statement that “De fenda nt eng ag ed in unlawful reta liation ag ainst Ms. Uzly an when, in October 2004, first-line supervisor Eric Raps provided her with an inacc urate , too low ‘Eff ective’ perf

ormanc e rating for the appra isal period from J anuar y 21, 2004 to September 30, 2004,” Compl. ¶ 22, beca

use it “wa s an operative fac t” that led, in part, to the filing of the J une 2005 informal complaint. Pl.’s Opp’n a t 35. That alleg ation in ¶ 22 will be dismissed.

B. Failure t o Exhau st Adm inis trat ive Rem edies All parties ag ree that a fe dera l employ ee must c ontact an EEO c ounselor within 45

Ms. U zly an contends that Parag raphs 12, 21, and 23 are proce dural and informative only and do 4 not make or asser

t any ty pe of claim. The Court ag ree s that they do not asser t any claim ag ainst the Employ ee B enef

its S ecur ity

Administration. -9-day s of a discrete act o f d iscrimination and must identify all discrete acts of discrimination for

administrat i v e investigation and possible settlement prior to bring ing a lawsuit. See 29 C.F.R. § 1 6 14.105(a) (1). This fundame ntal prec ept of administrative law bars numerous claims in the Complaint. DOL argues that Complaint ¶¶ 17, 18, 21, 22, 25, 26, 27, 29, 32, 34, 38, 41, 45, 46, 47, 52, 54, 55, 59, 62, 63, 70, 74, 77 and 79 should be dismiss ed beca use Ms. Uzly an did not exhaust her administrative remed i es . Ad ditionally , DOL asser ts that Ms. Uzly an’s “patter n and prac tice” claims in Complaint ¶¶ 71, 81, and 83 should be dismiss ed for the same rea son. These alleg ations

are discussed below.

1. Exhau stion of

Rem edies Under Title VII Ms. Uz l y an argues that the exhaustion of administrative reme dies is not a j u ri s d i ctional prer equisite under Title VI I beca use the exhaustion require ment can be waived o r tolled. See Pl.’s Opp’n at 19-20. The Court ag ree s. There fore , failure to exhaust administrative

reme dies under Title VI I is proper ly analy zed under Rule 12(b)( 6) rathe r than Rule 12(b)( 1). For any Title VI I alleg ations for which she did not fully pursue her administrative reme dies, Ms. Uzly an has failed to state a claim unless she provides the Cou rt wi t h a basis upon which the exhaustion require ments should be waived.

Ms. Uzly an does n o t a

r g u e th a t the exhaustion require ment should be waived or tolled with respe ct to any of her claims. Instead, she ref ers t h e C o u rt to Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101 (2002), which she argues stands for the proposition th at t h e court must deter mine whether eac h claim constitutes a “discre te” act of discrimination that may be barr ed if not administratively exh au sted. Pl.’s Opp’n at 20. She urg es the Court to find that the matters

-10-ref

ere nced in Complaint ¶¶ 17, 18, 22 (in part), 32, 38 and 79 are not discrete acts beca use they are not actions that occur

red at a specific or fix ed time. See Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. at 114. Reviewing the particula rs of those Complaint par ag raphs, the Court notes that ¶ 17 alleg es that a supervisor at the Employ ee Be nefits Security Administration solicited his subordinates
to purcha se real estate throug h his wife. Since t h i s para g raph does not advanc e any claim on Ms. Uzly an’s behalf

, it is irrele vant whether it meets the Morgan standard or not. Whether it should be stricken a s scanda lous will be addresse d below.

Parag raph 18 alleg es that the same supervisor had a close “inner circ le” with whom he ofte n lunched. The same a naly sis applies. Parag raph 22, shorn of its alleg ations that wer e settled by Ms. Uzly an in Aug ust 2005, now states only

that the same supervisor was her se cond-line supe rvisor and tha t she had re ceive d highe r per formanc e ratings in the pa st. Parag raph 22 nowonly states bac kg round fa cts. Parag raph 32 alleg es that Ms. U zly an was de posed in July 2006 in c onnection with

a differ ent employ ee’ s EEO complaint. Since this para g raph only states an alleg ed inst an ce o f protec ted ac tivity , and not any claim on Ms. Uzly an’s be half, it is immaterial whethe r it meets the Morgan standard. Be cause Ms. Uzly an never relied on this instance of protec ted activity to support her discrimination char g es during the admin i s t ra t i ve proce ss, she cannot rec over for any harms associate d with this alleg ation, althoug h the fac t-finder may consider it as backg round information. Morgan , 536 U.S. at 113 (Title VI I does not “bar an employ ee from using the prior [non-ex hausted, discriminatory ] acts as bac kg round evide nce in support of a timely claim.”)

. Parag raph 38 alleg es, upon information and belief, that Employ ee Be nefits Security

-11-Administration manag ement informed Ms. Uzly an’s Union repr esenta tive that “due to Ms. Uzly an

prese nting a letter to [Employ ee Be nefits Security Administration] manag ement from her doc tor,” she would be terminated. Compl. ¶ 38. Whil e DOL argues that this alleg ation was never raised in the administrative proce ss, it is, actua lly , o n ly a matter of evidenc e and not an alleg ation of an adver se action. There fore , it does not matter that such action — despite Ms. Uzy lan’s argument to the contra ry — would constitute a discrete act. T h e ad v er se action to which it ultimately may be rela ted is M s . Uz l y an’s discharg e, which is clea rly prese nted. Parag raph 38 is backg round information and ne ed not be dismissed.

Complaint ¶ 79 alleg es dis crimi nation when a second- line supervisor alleg edly “dire cted Ms. Uzly an to make a derog atory joke about her Russian acc ent” at a DOL event. Compl. ¶ 79. This alleg ed event was n ev er advanc ed as an instance of discrimination in the multipl e proce eding s in the administrative fora and cannot b e re l i ed u p o n in court. Parag raph 79 will be dismiss ed. Ms. Uzly an further argues that the “matter s ref ere nced in [C omplaint ¶¶] 21, 25, 26, 27, 29, 59, 70 and 77 are discrete acts t hat Def endant has had notice of in Plaintiff’s prior EEO administrative case s as well as Plaintiff’s EEOC case .” Pl.’s Opp’n at 20. The argument misses the mark. The q u es t i o n is not notice per se but whether Ms. Uzly an exhausted her administrative

reme dies with respe ct to these c laims.

Parag raph 21 alleg es that Ms. Uzly an filed an informal complaint in J une 2004 that “did not proce ed to the formal stag e” beca use, i n es s en ce , i t was settled. See Compl. ¶ 21 (under ly ing disciplinary action not put in Ms. Uzly an’s file and she was g iven a detail). Ms. Uzly an cannot procee d here o n any informal EEO complaint from J une 2004 nor seek any reme dy for it.

-12-See Miller v. Smith , 584 F. Supp. 149, 153 (D.D. C

. 1 9 8 4 ) (finding that wher e plainti ffs withdrew

administrative complaint in light of settlement ag ree ment they wer e not entitled to proce ed on claims f r o m that complaint without re- filing and exhausting administrative reme dies). Howe v e r , Pa r a g r a p h 21 mere ly alleg es fac ts and not any claim ag ainst the Employ ee Be nefits Security Administration and there fore need not be dismiss ed.

Parag raph 25 of the Compla i n t alleg es unlawful reta liation when an October 2005 perf ormanc e rating , for the period November 2004 to September 2005, was “too low.” Compl. ¶ 25. Ms. Uz l y an ag ree s that this claim should be dismiss ed “bec ause an informal complaint for her undeser ved low perf

ormanc e [rating] for the period of November 2004 to September 2005 was not filed due to he r being place d on detail.” Pl.’s Opp’n at 21 n.4. Parag raph 25 w ill be dismi ssed.

Parag raph 26 of the C o m p l aint alleg es unlawful reta liation when, on October 13, 2005, Ms, Uzly an’s application for a GS-13 position as a Pension L aw Specialist was mishandled. Ms. Uzly an misleading ly points to the transcr ipt for the Aug ust 4, 2008, hear in g b ef o re the 5 Administrative J udg e to sug g est that this issue was acc epted for deter mination, howe ver, a look at the rest of the transcr ipt shows that Ms. Uzly an’s counsel stated and the Administrative J udg e found that while this claim was acc epted for investigation at an ear lier date, Ms. Uzly an waived it prior to the administrative hear ing via her October 17, 2007, letter. See Def .’s Notice, Ex

. 7 (Aug

. 4, 2008 6

I n deciding a Rule 12(b)( 6) motion, a court may take judicial notice of public rec ords from other 5 p ro ceeding s. Covad Comms. Co. v. Bell Atlantic Corp. , 407 F.3d 1220, 1222 (D.C. Cir. 2005) (per mitti ng judicial notice of fac ts in public rec ords of other proce eding s); Jane Does I Through III v. D.C. , 238 F. Supp. 2d 212, 216-17 (D.D.C. 2002) (cour t may take judicial notice of public rec ords of prior litig ation). At the administrative hea ring , Ms. Uzly an’s c ounsel stated: 6 Your Honor, I know y ou’ve rea d into the rec ord all of t h e gro u n d s -13-Hea

ring Tr.) at 6; 23-24. Be cause this instance of alleg ed discrimination was not exhausted throug h the administrative proc ess, it cannot be a dvance d here . Parag raph 26 w ill be dismi ssed.

Parag raph 27 of t he C omp l ai n t al leg es unl awf ul reta liation beca

use, after she filed her third informal complaint, Ms. Uzly an’s third-line supervisor alleg edly ignor ed her on a routine basis and “intimidated her with g laring looks.” See Compl. ¶ 27. As with Paragraph 26, Ms. Uzly an waived this claim prior to adjudication. See Def .’s Notice, Ex

. 7 (Aug

. 4, 2008 Hea ring Tr.) at 10- 11; 23-24. Be cause she failed to fully exhaust this claim, i t now cannot be made part of her E EO

case in court. Para g raph 27 w ill be dismi ssed.

Parag raph 29 of the Complaint alleg es unlawful reta liation when, in November 2005, Ms, Uzly an was instructed not to attend a staff meeting wher e her case work was to be discussed. Compl. ¶ 29. Ms. Uzly an allege s that befor e s h e t o o k p art in the EEO proce ss, she was “alwa y s” invited to attend such m eeting s. Id. Be cause this alleg ation — like Parag raphs 26 and 27 — was

n o t part of any EEO complaint that was followed throug h the admini strative process, i t cannot b e a basis for

suit now. Parag raph 29 w ill be dismi ssed. Parag raph 59 of the Complaint alleg es unlawful reta liation when, on April 28, 2008, Ms. Uzly an’s first-line supervisor issued a Final Unsatisfac tory Appra isal and a Proposal to Remove Ms. U zly an from fede ral service

. Compl. ¶ 59. Ms. Uzly an did not raise this issue in he r May 27,

that wer e acce pted i n this case , and we ag ree with those. Howeve r, Ijust wanted to raise the fa ct t hat on October 18, 2007, we wrote to y ou and also, of course , copied the Ag ency and narr owed the claims that we a re pr ocee ding w ith in this c ase. So, in other wor ds, we are not procee ding on seve ral of the bases or the acce pted issues that you read into the record. Def .’s Notice, E x . 7 (Aug . 4, 2008 Hea ring Tr.) at 23-24 (empha sis added). -14-2008, letter amending her EEO complaint, nor was it among the issues acc epted for investiga tion by
t h e C i v i l Rights Center. See Def .’s Notice, Ex

. 11 (May 28, 2008 Amendment to For mal Complaint); Def

.’s Notice, Ex

. 12 (Apr. 15, 2009 EEO I nvestig ation Report). Al though the perf ormanc e appra isal and proposal are rela ted to her terminati o n , t h e issue of which is proper ly befor e this Court, Ms. Uzly an did not complain about the appra isal or proposal at the administrative stag e and cannot proce ed on those issues here

. See Morgan , 536 U.S. at 111 (finding that “re lated discrete acts” are not to be trea ted as a “sing le unlawful prac tice for the purpose of timely filing” ). Parag raph 59 w ill be dismi ssed.

Parag raph 70 of the Complaint alleg es reta liation when Ms. Uzly an ’s fi rst-line supervisor denie d h er s u ff icient time during the work day to work on formal and informal EEO complaints. In the August 2008 hear ing, an Administrative J udg e considere d, among other issues, whether Ms. Uzly an had been “subjec ted to an ong oing hostile work environment by

. . . having her reque sts for officia l time to work on her EEO case denied.” Def .’s Notice, Ex

. 10 (Mar ch 25, 2009 EEOC Dec ision ) at 2

. T h e Administrative J udg e found that there was no evidenc e of such discrimination and enter ed j u d gm en t for the Ag ency . Id. at 18. Having rec eived a final administrative decision on this issue and timely filed the instant Complaint, Ms. Ulzy an may proce ed here on the alleg ations in Parag raph 70.

Finally , Complaint ¶ 77 alleg es national orig in discrimination when supervisors and manag ers “routinely ref

err ed to Ms. Uzly an as ‘the Mad Russian,’ ‘the Crazy Russian,’ ‘Ruskie,’ and said that she dresse d like ‘Euro Trash.’ ” Compl. ¶ 77. None of these alleg ations was ever made in

an administrative complaint. I f true, they are deplora ble. How ev er , that does not make them actionable now, as Ms. Uzly an failed to exhaust her administrative reme dies. Parag raph 77 will be

-15-dismiss ed. 2. Exhau stion of Rem edies Under the Re habi litation Act Unlike Title VI I , exhaustion of administrative reme dies under the Rehabilitation Act is a jurisdictional require ment and, there fore , cannot be waived or tolled. See Rand v. Geithner , 609 F. Supp. 2d 97, 100 (D.D.C. 2009). Ms. Uzly an argues that she h as ex h au s t ed all of her Rehabilitation Act claims as repr esente d in Paragraphs 34, 41, 45, 46, 47, 52, 54, 55, 62, 63, and 74 of the Complaint. She ag ain relies on Morgan for t h e p ro p osition that the Court must deter mine whether a claim constitutes a “discre te act” of discrimination and thus must be fully exhausted, and argues that the alleg ations in Parag raphs 45 and 74 are not “discre te acts” beca use they did not occur at a spe cific or

fix ed time. Pl.’s Opp’n at 23. Parag raph 45 alleg es that in Marc h 2007, Ms. Uzly an reque sted a rea sonable

acc ommodation for her mental disability

. Compl.¶ 45. Although this clea rly occur red at a specific time, this para g raph only states an alleg ed ins tance of protected ac tivity and not any

claim on Ms. Uzly an’s be half. The ref

ore, it is immaterial whe ther it meets the Morgan standard. Parag raph 74 alleg es that manag ers a t th e E mp lo y e e B e n e f

it s Se curity Administration d i s cr i m i nated ag ainst Ms. Uzly an when they discussed her confide ntial employ ee information i n front of he r co- worke rs. C ompl. ¶ 74. This is not an adve rse e mploy ment action pursua

nt to Titl e VI I or the Rehabilitation Act, nor did Ms. Uzly an advanc e this claim as evidenc e of a hostile w ork environment. Ms. Uzly an’s failure to raise this issue at the administrative stag e nece ssitates dismiss al of Para g raph 74.

Wit h respe ct to Parag raphs 34, 46, 47, 52, 54, 55, 62, and 63, Ms. U zly an conce des that they do alleg e dis cre te acts, but ag ain arg ues that Def endant had “notice” of t hese alleg ations

-16-as a result of her previous administrative filings. As stated befor e, the issue is not “notice,” per se ,

but whether

Ms. Uzly an exhausted her reme dies with respe ct to these a lleg ations. Parag raphs 34, 46, 47, 52, 55, 62, and 63 alleg e un l aw ful reta liation when Ms. Uzly an’s supervisors denied h e r rea sonable acc ommodation reque sts of September 2006, May 2007, November 2007, and October 2008, and her appea l of such denials in J une 2007, Fe bruar y 2008, and October 2008. See Compl.¶¶ 34, 46-47, 52, 62-63. To the extent these claims wer e part of a ny of Ms. Uzly an’s EEO complaints, she voluntarily waived the m before they rea ched adjudication and cannot raise them here

. See Def .’s Notice, E x . 7 (Aug . 4, 2008 Hea ring Tr.) at 11 (re fer encing an instance wher e Ms. Uzly an was denied a rea sonable acc ommodation without specify ing a date) ; id

. at 23-24 (noting her waiver of all previously descr ibed claims). Para g raphs 34, 46, 47, 52, 55, 62 and 63 will be dismissed.

Para graph 41 alleg es unlawful reta liation when Ms. Uzly an’s first-line supervisor denied her rea sonable acc ommodation reque st to return to the Flexiplace prog ram “due to her mental disability (major de pression)” in J anuar y 2007. Compl. ¶ 41. The Administrative J udg e ac cepte d the issue of whether Def endant reta liat ed against Ms. Uzly an or subjected her to a hostile work environment by “fa iling to approve her reque st for acc ommodation based on psy chiatric disabiliti es

on J anuar y 9, 2007.” See Def

.’s Notice, Ex

. 9 (Jan.11, 2008 Orde r); Id. Ex

. 7 (Aug

. 4, 2008 Hea ring Tr.) at 27. Be cause Ms. Uzly an followed this issue fully throug h the administrative proce ss, she may proce ed on this claim here

.

Parag raph 54 alleg es u nlawful reta liation when, on J anuar y 9, 2008, Ms. Uzly an’s reque st for voice- computer softwar e due to her phy sical disability was denied. Compl. ¶ 54. As with

-17-P arag raph 41, the Administrative J udg e acc epted this issue for adjudication. Ms. Uzl y an m ay 7 proce ed on this claim here

.

C. “P atte rn and Prac tice ” Allegations I n Complaint ¶¶ 71, 81 and 8 3 , M s . Uz ly an alleg es that the Employ ee Be nefits Security Administration, “[u] pon information and belief , ” eng ag ed in “a pattern and prac tice of
reta liatory conduct ag ainst [Empl oy ee Be nefits Security Administration] employ ees, including Ms. Uzly an,” who “f

i l ed EEO complaints,” id. , ¶ 71, wer e “non-A merica n employ ees,” id. , ¶ 81, and “se x d i s cr i m i nation ag ainst fema le employ ees.” Id. ¶ 83. None of these “patter n and prac tice” alleg ations was made by Ms. Uzly an in any administrative complaint and none was ever investiga ted by the Civil R ights Center . They must be dismis sed for

failure to exhaust. D. Mot ion to Strike as Im m ater ial, Imper tinent, or Scandalou s DOL also alleg es that Complaint ¶¶ 12, 17, 18, 21, 22, 23, 25, 26, 27, 29, 32, 34, 38, 41, 45, 46, 47, 52, 54, 55, 59 (alleg ations rela ting to perf ormanc e appra isal), 62, 63, 70, 71, 74, 77, 7 9 , 8 1 , an d 83 should be stricken pursuant to Fe dera l Rule 12(f)

. As the Court has alr ea d y deter mined many of these para g raphs should be dismiss ed for failure to exhaust, the ones rema ining for c onsideration ar e Complaint ¶¶ 12, 17, 18, 22, 23, 32, 41, 54, and 70.

DOL has not argued that any specific prejudice wou l d result from the inclusion of these para g raphs, instead stating that “[t] he likely result of injecting these impertinent alleg ations would be to conf

use the issues and to cast a de rog atory light on Ag ency

manag ement, g ener ally .”

Although the Complaint ref ere nces 2008, the claim appea rs to arise out of the previously ref ere nced 7 J anuar y 9, 2007 incident. Be cause the day in the Complaint (January 9) and specific alleg ation are the same as those addre ssed by the Administrative J udg e, the Court assumes that the ref ere nce in the Complaint t o 2008 is a ty pog raphic al er

ror. -18-Def

.’s Mem. at 18. “The word ‘scan d al o u s ’ i n Rule 12(f) ‘g ener ally ref ers to any alleg ation that

unnece ssarily ref

lects on the moral char acte r of an individual or states any thing in repulsive lang uag e that detra cts from the dignity of the court.’” Pigford v. Vene man , 215 F.R.D. 2, 4 (D.D.C. 2003) (interna l citations omitted). In the absenc e of pejora tive adjec tives char acte rizing the fac ts alleg ed

or other colorful lang uag e, the fac t that a plaintiff’s alleg ations may cast the defe ndant in a “der og atory

light” is insuffic ient to warr ant the striking of alleg ations from a c omplaint. Her e, the challeng ed alleg ations do not include provocative lang uag e or detra ct from the dignity of the Court. DOL challeng es Complaint ¶ 12, which alleg es that an individual who was not a member of any of Ms. Uzly an’s protec ted classes was non-compe titively transfe rre d to a new position by a person with whom he share d a close friendship. Compl. ¶ 12. Parag raph 17 states that

a s u pervisor “solicited his subordinates at work to buy rea l estate throug h his wife, a real es t at e broker ,” and that those who did so rec eived promotions or other employ ment perks. Compl. ¶ 17. Parag raph 18 alleg es that this same supervisor maintained an “inner circ le” of friends and colleag ues who ate lunch toge ther and wer e “hand- picked for promotional opportunities.” Compl. ¶ 18. Parag raphs 22, 23, 32, 41, 54, and 70 all alleg e backg round fac ts, instances of protec ted activity , or claims of discrimination that the Court has addre ssed above. None of the challeng ed para g raphs is scanda lous or impertinent. Cf. Pigford, 215 F.R.D. 2, 4 (D.D.C. 2003); (striki n g alleg ations of

rac ism that wer e unsupported by fac ts or evidenc e and which constituted hara ssment); W iggins , 853 F. Supp. 457, 458 (D.D.C. 1994) (g ranting motion to strike wher e plaintiff alleg ed defe ndant ’s employ ee was abusing illega l drug s; noting that the irrele vant alleg ations did not support but in fac t cut ag ainst plaintiff’s claims of rac e-ba sed discrimination); Jack son v. H. R. Nicholson Co. , 545 F. Su p p . 7 6 2 , 763-764 (D.D.C. 1982) (striking alleg ation that defe ndant produce r of artificia l s w e e te n e r

-19-“deliber ately failed to notify plai n t i ffs of such health hazards, ‘in further ance of a conspirac y

betwee n defe ndant [ ] and the g overnme ntal d ef en d an t s to commit the crime of Genocide’ ag ainst plaintiffs and other

inmates at fa cilities of defe ndant D.C. Depa rtment of Corre ctions”). The Court finds that “the ef fo rt s o f the parties and the attention of court are better spent on the substantive merits of the ac tion rather tha n the contents of the pleading s.” Makuc h v. FBI , 2000 U.S. Dist. L EXI S 9487 , at *4. Although some of the alleg ations in the Complaint are arguably irrele vant to Ms. Uzly an’s rema ining claims, they are not scanda lous or impertinent. DOL has fa iled to show any

prejudice . The motion to strike will be denied.

IV. CONCLUSION Comparing the challenged alleg ations from the Complaint with those acc epted for investigation and deter

minatio n th

r o u g h th e a d

mi n is tr a ti v e E E O proce ss makes clea r that Ms. Uzly an either had more instances of alleg ed discrimination than of what she co m p lained or that the enthusiasm of constructing a fede ral c omplaint has rec ollected e vents that contempora neously did not seem unlawf

ul. I n either e vent, the instance s of alleg ed discrimination in Complaint ¶¶ 22 (in part), 25, 26, 27, 29, 34, 46, 47, 52, 55, 59, 62, 63, 71, 74, 77, 79, 81, and 83, as noted above, wer e not exhausted and do not support a fe d er al l aw suit now. All will be dismiss ed. Plaintiff will be order ed to file a First Amended Complaint to confor m the Complaint to the Court’s ruling s. A memorializing Orde r ac companies this Memora ndum Opinion.

Date: Apr il 13, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

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