UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

______________________________ 

) 

SAKEITHEA RODGERS, ) 

) 

Plaintiff, ) 

) 

v. ) Civil Action No. 14-208(EGS) 

) 

THOMAS E. PEREZ, ) 

Secretary of Labor ) 

) 

Defendant. ) 

______________________________) 

MEMORANDUM OPINION 

 Plaintiff Sakeithea Rodgers (“Ms. Rodgers”) brings this 

action against the United States Department of Labor (“DOL”) 

alleging discrimination on the basis of sex and retaliation for 

prior protected civil rights activity in violation of Title VII 

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 

42 U.S.C. § 1981a. The DOL moves to dismiss Ms. Rodgers’s 

complaint for failure to exhaust her administrative remedies. 

Upon consideration of the motion, the response and reply 

thereto, the applicable law, the entire record, and for the 

reasons stated below, the DOL’s motion is DENIED.

I. BACKGROUND 

A. Statuary Framework 

The Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 

1101 et seq., establishes a comprehensive framework for 
2 

evaluating employment actions taken against federal employees. 

When a serious adverse personnel action, such as a discharge, 

demotion, or reduction in pay, is taken against a federal 

employee, the employee may appeal the adverse action to the 

Merit Systems Protection Board (“MSPB” or “the Board”). 5 U.S.C. 

§§ 7512, 7701. The MSPB is an independent adjudicator of federal 

employment disputes. An appeal to the MSPB may allege that the 

personnel action was impermissible solely as a matter of civil 

service law, or the appeal may allege that the personnel action 

was taken, in whole or in part, based on discrimination 

prohibited by another federal statute, such as Title VII of the 

Civil Rights Act. See 5 U.S.C. § 7702. These latter types of 

actions are known as “mixed cases” because they allege 

violations of both civil service law and civil rights law. See 

29 C.F.R. § 1614.302. 

A federal employee who seeks to file a mixed case has two 

options to begin the grievance process: (1) file a 

discrimination complaint with the agency through the agency’s 

Equal Employment Opportunity (“EEO”) Office, or (2) file an 

appeal directly with the MSPB. 29 C.F.R. 1614.302(a); 5 C.F.R. 

1201.154(a). An employee cannot maintain the same action in both 

forums; she must exhaust her administrative remedies in the 

forum where her complaint or appeal was first filed. 29 C.F.R. 

1614.302(b); Schlottman v. Perez, 739 F.3d 21, 22 (D.C. Cir. 
3 

2014). Where the employee pursues a mixed case complaint within 

the agency, she may appeal an adverse agency decision to the 

MSPB, or sue directly in federal district court. 5 C.F.R. § 

1201.154(b); 29 C.F.R. § 1614.302(d)(1)(i). Where the employee 

pursues a mixed case appeal with the MSPB, she may appeal an 

adverse decision by filing suit in federal district court. 5 

U.S.C. § 7703(b)(2).1

B. Factual Background 

On September 25, 2011, Ms. Rodgers was appointed as 

Director of Human Resources at the Employment Training 

Administration (“ETA”) of the Department of Labor (“DOL”). 

Compl., Docket No. 1 at ¶ 9. When the DOL first offered Ms. 

Rodgers the position, she was told she would be compensated at 

the GS-15, Step 7 pay level. Id. at ¶ 7. Ms. Rodgers informed 

the DOL that, based on her prior employment at the Federal 

Deposit Insurance Company (“FDIC”), her proper salary level was 

GS-15, Step 9. Id. at ¶ 8. The DOL then offered Ms. Rodgers the 

position at the GS-15, Step 9 level, and Ms. Rodgers accepted. 

Id. at ¶ 9. 

In March of 2012, Ms. Rodgers informed her immediate 

supervisor, Lisa Lahrman (“Ms. Lahrman”), that she was being 

 

1 Ordinarily, an employee has the right to appeal an adverse MSPB 

decision to the U.S. Court of Appeals for the Federal Circuit. 5 

U.S.C. 7703(b)(1). “Mixed cases” are the exception to this 

general rule. 5 U.S.C. 7703(b)(2). 
4 

sexually harassed by Jose Conejo (“Mr. Conejo”), one of Ms. 

Rodgers’s subordinates. Id. at ¶ 11. According to the complaint, 

Ms. Lahrman was unsympathetic and refused to take action. Id. In 

April 2012, Ms. Rodgers attempted to report Mr. Conejo to the 

DOL’s EEO Officer, but was told she could not file an EEO claim 

because he was her subordinate. Id. Ms. Rodgers took no further 

action until she was approached by three other women, two of 

whom were Mr. Conejo’s subordinates, who reported that he had 

been sexually harassing them as well. Id. at ¶ 12. Ms. Rodgers 

again went to the EEO Office and reported Mr. Conejo’s conduct. 

Id. 

In October 2012, Ms. Rodgers began to prepare Mr. Conejo’s 

performance evaluation. Id. at ¶ 13. Ms. Rodgers planned to note 

his poor performance and harassing conduct on his evaluation, 

but Ms. Lahrman refused to accept the evaluation and generally 

dismissed Ms. Rodgers’s concerns. Id. In early November 2012, 

Ms. Lahrman called Ms. Rodgers into her office and questioned 

her about the starting salary she received upon entering the 

DOL. Id. This was the first time anyone had questioned Ms. 

Rodgers about her appropriate within-grade step since she 

accepted the DOL’s employment offer more than a year earlier. 

Id. Following the November 2012 meeting, Ms. Lahrman demanded a 

review of Ms. Rodgers within-grade step. Id. at ¶ 14. Ms. 

Lahrman retroactively downgraded Ms. Rodgers from a Step 9 to a 
5 

Step 6. Id. The agency then began to initiate an effort to 

recover the purported overpayment. Id. 

C. Procedural History 

Ms. Rodgers filed a timely appeal of the step reduction to 

the MSPB in March of 2013. Id. at ¶ 15. Ms. Rodgers initiated 

the appeal by submitting an online form. Def.’s Mot. Dismiss, 

Docket 19, Ex.1. She did not have counsel at the time she 

completed the form. Pl.’s Mem. Opp. Def.’s Mot. Dismiss. 

(“Pl.’s Mem. Opp.”), Docket No. 20 at 1. On the online form, Ms. 

Rodgers checked the boxes for “harmful procedural error” and 

“whistleblower,” but did not check the box for prohibited 

discrimination. Def.’s Mot. Dismiss., Docket No. 19, Ex. 1 at 5. 

On May 2, 2013, Ms. Rodgers, through counsel, filed a 

motion to alter the hearing scheduled in her MSPB appeal. Def.’s 

Mot. Dismiss, Docket No. 19, Ex. 3. The motion indicated that 

Ms. Rodgers sought an extension of time “to allow for a 

reasonable period of time for taking discovery and for amending 

the claims to include retaliation under Title VII of the Civil 

Rights Act, which claim was meant to be included in this appeal 

(making it a “mixed case”). . . .”. Id. (parenthetical in 

original). The motion further indicated that it was Ms. 

Rodgers’s intention to claim that her reduction in pay was 

motivated by her prior protected EEO activity – that is, her 

reporting Mr. Conejo’s sexual harassment – but had mistakenly 
6 

checked “whistleblower” rather than “discrimination” believing 

that it was the proper box for a retaliation claim. Id. 

Mr. Rodgers never formally amended her MSPB appeal form. 

Def.’s Mot. Dismiss, Docket 19 at 3. However, in an initial 

telephone conference held before the MSPB Administrative Law 

Judge (ALJ) on May 6, 2013, Ms. Rodgers informed the ALJ that 

she was bringing a “mixed case” and that she wished to bring her 

Title VII claims before the MSPB as well. Pl.’s Mem. Opp., 

Docket No. 20 at 4. 

Ms. Rodgers then sought discovery from the DOL on both the 

CSRA and Title VII issues. Pl.’s Mem. Op., Docket 20, Ex. 1 at 

2. When the DOL failed to respond, Ms. Rodgers moved to compel. 

Id. In her motion to compel, Ms. Rodgers reiterated her 

intention to bring a mixed case appeal before the MSPB: 

The result of this conference is that there 

is no question that Ms. Rodgers’s appeal 

presents a mixed case, and, therefore, she 

is entitled to discovery on all issues 

relevant to her appeal – both on the civil 

service law merits and on discrimination and 

retaliation claims. 

Id. The ALJ granted in part, and denied in part, Ms. Rodgers’s 

motion to compel. Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1-2.2 In 

 

2 Specifically, the ALJ ordered the DOL to respond to Ms. 

Rodgers’s interrogatories and requests for production 

immediately. Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1. The ALJ 

granted Ms. Rodgers’s request to depose one DOL employee over 

the DOL’s objection, but denied her request to depose numerous 

others. Id. 
7 

her written decision ruling on the motion to compel, the ALJ 

indicated that Ms. Rodgers raised “claims of discrimination and 

retaliation for engaging in EEO activity in connection with her 

reduction in pay.” Id. In spite of the ALJ’s order, the DOL 

again failed to respond to Ms. Rodgers’s discovery requests, and 

Ms. Rodgers moved for sanctions. Def.’s Mot. Dismiss, Docket No. 

19, Ex 6 at 1-2. 

 The ALJ held another telephonic conference on September 9, 

2013, at which time Ms. Rodgers withdrew her request for a 

hearing and requested that, as a sanction for not responding to 

her discovery requests, the record be closed immediately, before 

the agency had an opportunity to present additional evidence or 

argument. Id. The ALJ granted Ms. Rodgers’s motion for 

sanctions, cancelled the hearing, and closed the record, noting 

the DOL’s complete failure to engage in discovery: 

At the appellant’s request, the record in 

this matter is now closed, and I will issue 

a decision based on the written record. As 

a sanction for refusing to participate in 

discovery, including failure to comply with 

my order to compel, the agency will not be 

permitted to submit additional evidence and 

argument at this late date after failing to 

respond to the appellant’s discovery 

requests, notices of deposition, and 

attempts to contact [counsel for DOL]. 

Id. 

The ALJ proceeded to issue a decision on the pleadings 

alone. Def.’s Mot. Dismiss, Docket No. 19, Ex. 7. In an Initial 
8 

Decision dated December 11, 2013, the ALJ reversed the DOL’s 

decision to downgrade Ms. Rodgers’s pay. Id. In reaching this 

decision, the ALJ noted that the DOL’s “lengthy delay in 

correcting what it deemed [a] pay-setting error argues against 

the propriety of the agency’s action here.” Id. The ALJ’s Order 

required the DOL to cancel its “administrative correction” of 

Ms. Rodgers’s pay grade and further ordered the DOL to pay Ms. 

Rodgers any back pay due. Id. The ALJ’s Initial Decision was 

entirely silent as to Ms. Rodgers’s Title VII claims. Neither 

party filed a petition for review of the ALJ’s Initial Decision 

and, in accordance with MSPB regulations, the Initial Decision 

became the ALJ’s Final Decision on January 15, 2014. See 5 

C.F.R. § 1201.113. 

Ms. Rodgers filed a Title VII action in this Court on 

February 12, 2014. Compl., Docket No. 1. Ms. Rodgers notes that 

by reversing the reduction in her step and pay the MSPB provided 

her “virtually all the equitable relief” to which she would be 

entitled had she succeeded on her Title VII claims before the 

Board. Id. However, she now seeks compensatory damages for the 

“career damage done to her, as well as for the professional and 

personal embarrassment and humiliation she was made to suffer” 

as a result of the DOL’s Title VII violations. Id. As relief, 

she requests a declaratory judgment finding that she was the 

victim of intentional sex discrimination and retaliation in 
9 

violation of Title VII, compensatory damages in the amount 

$300,000.00, attorney’s fees and costs, and injunctive relief. 

Id. 

The DOL moved to dismiss on January 23, 2015, arguing that 

Ms. Rogers failed to administratively exhaust her Title VII 

claims before the MSPB. Def.’s Mot. Dismiss, Docket No 19 at 1. 

The DOL argues that (1) Ms. Rodgers failed to raise her 

discrimination and retaliation claims before the MPSB; (2) even 

if Ms. Rodgers raised Title VII claims before the MSPB, she 

subsequently abandoned them; and (3) pursuant to the Supreme 

Court’s decision in Kloeckner v. Solis, 133 S.Ct. 596 (2012), 

the ALJ’s silence on the Title VII issue precludes Ms. Rodgers 

from seeking review in this Court. Id. 

II. STANDARD OF REVIEW 

Defendant moves to dismiss Ms. Rodgers’s complaint under 

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def.’s 

Mot. Dismiss, Docket 20 at 1. In this district, motions to 

dismiss for failure to exhaust administrative remedies under 

Title VII are generally resolved as motions to dismiss for 

failure to state a claim under Rule 12(b)(6). Augustus v. Locke, 

699 F. Supp. 2d 65, 69 n.3 (D.D.C. 2010). Rule 12(b)(1) is 

inapplicable because failure to exhaust administrative remedies 

is not a jurisdictional bar to bringing suit under Title VII. 

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); 
10 

Marcelus v. Corr. Corp. of Am., 540 F. Supp. 2d 231, 234-35 

(D.D.C. 2008). In this case, however, the Rule 12(b)(6) standard 

is inappropriate because the Court must look outside the 

pleadings to resolve the exhaustion issue. See Fed. R. Civ. P. 

12(d) (“If, on a motion under Rule 12(b)(6) . . . , matters 

outside the pleadings are presented and not excluded by the 

court, the motion must be treated as one for summary judgment 

under Rule 56.”). Accordingly, the Court will construe the 

defendant’s motion as a motion for summary judgment. 

Summary judgment is appropriate when the moving party has 

shown that there are no genuine issues of material fact and that 

the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. 

Cir. 2002). A material fact is one that is capable of affecting 

the outcome of the litigation. Anderson v. Liberty Lobby, 477 

U.S. 242, 248 (1986). A genuine issue is one where the “evidence 

is such that a reasonable jury could return a verdict for the 

non-moving party.” Id. A court considering a motion for summary 

judgment must draw all “justifiable inferences” from the 

evidence in favor of the nonmovant. Id. at 255. To survive a 

motion for summary judgment, however, the nonmovant “must do 

more than simply show that there is some metaphysical doubt as 

to the material facts”; instead, the nonmoving party must come 
11 

forward with “specific facts showing that there is a genuine 

issue for trial.” Matsushita Elec. Indus. Co. Ltd., v. Zenith 

Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed. R. Civ. P. 

56(e)). 

III. DISCUSSION 

A. Ms. Rodgers Timely Raised her Title VII Claims Before 

the MSPB 

The DOL argues that Ms. Rodgers never properly brought a 

mixed case before the MSPB: her original appeal form did not 

indicate she was alleging a Title VII violation and Ms. Rodgers 

never formally amended her appeal form. Def.’s Mot. Dismiss, 

Docket No. 19 at 11. Ms. Rodgers argues that she successfully 

brought a mixed case when she raised the Title VII claim in the 

May 2013 telephonic conference before the ALJ. Pl.’s Mem. Opp., 

Docket No. 2 at 3. Further, Ms. Rodgers argues that the ALJ 

recognized the appeal as a mixed case when she granted her 

discovery on both the civil service law and civil rights law 

issues. Id. at 4-5. 

The Board’s regulations provide that “[a]n appellant may 

raise a claim or defense not included in the appeal at any time 

before the end of the conference(s) held to define the issues in 

the case.” 5 C.F.R. § 1201.24(b). Ms. Rodgers informed the ALJ 

she was bringing a mixed case during the May 6, 2013 telephone 

conference. Pl.’s Mem. Opp., Docket 20 at 4. Ms. Rodger’s motion 
12 

to compel discovery before the ALJ summarizes the telephone 

conference as follows: 

On May 6, 2013, Administrative Judge Clement 

held a telephonic conference with counsel 

for [Ms. Rodgers] and the Agency wherein it 

was clarified that this is a mixed case, 

addressing both the merits of the employment 

actions taken against Ms. Rodgers as well as 

issues of unlawful employment discrimination 

and retaliation. 

Pl.’s Mem. Opp., Docket 20, Ex. 1 at 2. Indeed, in ruling on the 

Motion to Compel, the ALJ granted Ms. Rodgers discovery on both 

the civil service law and civil rights law issues, indicating 

that Ms. Rodgers was “raising claims of discrimination and 

retaliation for engaging in EEO activity in connection with the 

reduction in her pay.” Pl.’s Mem. Opp., Docket 20, Ex. 2 at 1. 

By raising her Title VII claims in the May 6, 2013 conference to 

define the issues, Ms. Rodgers timely brought a mixed case 

appeal before the MSPB. Accordingly, the DOL’s first argument 

must fail. 

B. Ms. Rodgers Did Not Abandon Her Title VII Claims 

Next, the DOL argues that even if Ms. Rodgers timely raised 

a mixed case appeal, she abandoned her Title VII claims when she 

(1) failed to formally amend her appeal; (2) filed a pre-hearing 

submission characterizing the issue of the case as a civil 

service law issue, rather than a civil rights issue; (3) closed 

the record before submitting any evidence of discrimination; and 
13 

(4) failed to file a petition for review of the ALJ’s Initial 

Decision. Def.’s Mot. Dismiss., Docket No. 19 at 11. Ms. Rodgers 

counters that she never intended to abandon her Title VII 

claims, and that any failure to pursue these claims on the 

merits was solely the fault of the DOL. Pl.’s Mem. Opp., Docket 

No. 20 at 3, 8. 

When an employee “abandons” her claims during the 

administrative proceedings, she has not exhausted those claims 

for purposes of seeking review in federal court. Bush v. 

Engleman, 266 F. Supp. 2d 97, 101 (D.D.C. 2003) (citing Greenlaw 

v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995)). An employee 

abandons her claim where she withdraws from the administrative 

proceeding prior to its conclusion or expressly disclaims any 

intention of pursuing the claims further. Bush, 266 F. Supp. 2d 

at 101; Thurman v. Merit Sys. Prot. Bd., 566 F.App’x 957, 960 

(Fed. Cir. 2014) (per curium); Meehan v. U.S. Postal Serv., 718 

F.2d 1069, 1073-74 (Fed. Cir. 1983). Courts may also consider 

claims abandoned where the employee has intentionally obstructed 

the administrative process. See Vinieratos v. Dep’t of Air 

Force, 939 F.2d 762, 770 (9th Cir. 1991). 

The DOL points to four separate occasions where it argues 

Ms. Rodgers abandoned her Title VII claims. Each will be 

discussed in turn. 
14 

1. Ms. Rodgers’s Failure to Formally Amend her Appeal 

Form 

First, the DOL argues that Ms. Rodgers abandoned her claim 

when she failed to formally amend her MSPB form. Def.’s Mot. 

Dismiss, Docket No. 19 at 11. As discussed above, the 

regulations provide that “[a]n appellant may raise a claim or 

defense not included in the appeal at any time before the end of 

the conference(s) held to define the issues in the case.” 5 

C.F.R. § 1201.24(b). While formal amendment of the appeal never 

occurred, Ms. Rodgers raised the Title VII issues in a telephone 

conference before the ALJ on May 6, 2013. Pl.’s Mem. Opp., 

Docket No. 20 at 4. Accordingly, Ms. Rodgers did not abandon her 

Title VII claims through her failure to formally amend her 

appeal. 

2. Ms. Rodgers’s Characterization of the Issues in her 

Pre-Hearing Submission 

 Second, the DOL argues that Ms. Rodgers abandoned her Title 

VII claims through the characterization of the “issue” of the 

case in her pre-hearing submission before the MSPB. Def.’s Mot. 

Dismiss, Docket 19 at 11. Specifically, in the submission, Ms. 

Rodgers described the “issue” of the MSPB appeal as whether she 

received the proper in-grade step upon entry to the DOL. Def.’s 

Mot. Dismiss, Docket 19, Ex. 4 at 2. The DOL argues that by 

framing the issue as a question of civil service law, rather 

than a question of both civil service and civil rights law, Ms. 
15 

Rodgers abandoned her Title VII claims. Def.’s Mot. Dismiss, 

Docket 19 at 11. 

To bring a mixed-case appeal before the MSPB, the 

regulations require that the employee allege the appealable 

employment action took place, “in whole or in part,” based on 

prohibited discrimination. 29 C.F.R. § 1614.302(a)(2). Ms. 

Rodger’s pre-hearing submission to the ALJ includes allegations 

that she “had reported that both she and other female employees 

in her unit had suffered sexual harassment at the hands of Jose 

Conjeo.” Def.’s Mot. Dismiss, Docket 19, Ex. 4 at 10. She 

further alleges that soon after she reported this harassment to 

Ms. Lahrman, Ms. Lahrman initiated a review of her salary. Id.

Moreover, the pre-hearing submission twice characterizes Ms. 

Rodger’s MSPB Appeal as a “mixed case.” Id. at 13, 15. Far from 

evidencing abandonment of her Title VII claims, by alleging 

instances of discrimination and retaliation in connection with 

her reduction in pay, Ms. Rodger’s pre-hearing submission is 

wholly consistent with a mixed case appeal. Accordingly, Ms. 

Rodgers did not abandon her Title VII claims through her prehearing submission. 

3. Ms. Rodgers Closed the Administrative Record Prior 

to Submitting Evidence of Discrimination 

Third, the DOL argues that Ms. Rodgers abandoned her Title 

VII claim by closing the administrative record prior to 
16 

submitting any evidence of discrimination or retaliation. 

Def.’s Mot. Dismiss, Docket No. 19 at 13. According to the DOL, 

when the ALJ prevented the DOL from offering any additional 

evidence as a sanction for their misconduct in discovery, 

nothing prevented Ms. Rodgers from submitting her own affidavit 

setting forth the allegedly discriminatory and retaliatory acts. 

Id. While Ms. Rodgers does not address her failure to submit an 

affidavit specifically, she argues that she was “stripped” of 

her ability to have her Title VII claims heard on the merits “by 

DOL’s unconscionable refusal to provide and allow discovery, 

even when ordered to do so by the MSPB Administrative Judge.” 

Pl.’s Mem. Opp., Docket No. 20 at 8. In support of this 

argument, Ms. Rodgers cites to the ALJ’s decision granting her 

counsel full attorney’s fees: 

The agency argues that any fees charged in 

connection with [Ms. Rodgers’s] EEO and 

retaliation claims should be eliminated 

because [Ms. Rodgers] did not prevail on 

these claims in her appeal. Notably, the 

agency avoids mention of the reason [Ms. 

Rodgers] could not prevail on her claim of 

discrimination and retaliation: she was 

prevented from developing her claims by the 

agency’s complete failure to participate in 

the discovery process despite both her 

counsel’s and my own interventions in his 

regard. Because of the lack of discovery in 

this matter, the appellant was forced to 

withdraw her request for a hearing and 

instead seek a decision on the written 

record . . . I find that her inability to 

develop these [Title VII] claims was solely 

the fault of the agency, and I do not find 
17 

it reasonable to reduce her claim for fees 

in connection with these issues in these 

circumstances . . . it was evident from her 

initial pleadings that she fully intended to 

develop these claims had the agency provided 

her with the discovery materials she needed. 

Pl.’s Mem. Opp., Docket 20, Ex. 3 at 6. The DOL counters that 

the ALJ’s statements are mere dicta and do not establish a basis 

for allowing Ms. Rodgers to bring her Title VII claims in this 

Court. Def.’s Mot. Dismiss, Docket No. 19 at 2. 

Dicta or not, Ms. Rodgers was prevented from presenting 

evidence on her Title VII claims before the ALJ due to the 

agency’s “complete failure to participate in the discovery 

process.” Pl.’s Mem. Opp., Docket 20 Ex. 3 at 6. Ms. Rodgers 

never expressly disclaimed her intention of pursuing her Title 

VII claims further, nor did she engage in misconduct with the 

intention of obstructing the administrative process. It was the 

DOL, and not Ms. Rodgers, who failed to meaningfully participate 

in the administrative proceedings. Accordingly, Ms. Rodgers did 

not abandon her Title VII claims by closing the administrative 

record. 

4. Ms. Rodgers Failed to Object to the ALJ’s Initial 

Decision 

Finally, the DOL argues that Ms. Rodgers abandoned her 

Title VII claims when she failed to object to the ALJ’s Initial 

Decision. Def.’s Mot. Dismiss, Docket No. 19 at 15. According to 

the DOL, Ms. Rodgers should have filed a petition for review of 
18 

the ALJ’s decision, or alternatively, should have alerted the 

ALJ that she overlooked the Title VII claims. Id. Ms. Rodgers 

argues that after the DOL refused to provide her with discovery, 

any attempt to appeal the ALJ’s decision would have been futile. 

Pl.’s Mem. Opp., Docket No. 20 at 7. 

Neither the statute nor accompanying regulations require 

the employee to file a petition for review of the ALJ’s Initial 

Decision prior to proceeding in federal court. The DOL seeks to 

read in a requirement that is simply not there. Once again, the 

DOL fails to demonstrate that Ms. Rodgers expressly disclaimed 

her intention of pursuing her Title VII claims further or 

engaged in misconduct with intent to obstruct the administrative 

proceedings. Accordingly, Ms. Rodgers did not abandon her Title 

VII claims at any point during the administrative proceedings. 

C. The DOL’s Reading of Kloeckner v. Solis Is 

Inconsistent with the CSRA 

The DOL argues that, according to the Supreme Court’s 

decision in Kloeckner v. Solis, 133 S.Ct. 596 (2012), the ALJ’s 

silence on the Title VII claims precludes Ms. Rodgers from 

seeking review of those claims in federal district court. Def.’s 

Mot. Dismiss, Docket No. 19 at 9-10.3 Ms. Rodgers argues that the 

 

3 The DOL argues Ms. Rodgers has no recourse to address her Title 

VII claims in any forum because she is also precluded from 

having the claims heard by the DOL’s EEO office due to her 

initial election to proceed before the MSPB. Def.’s Mot. 

Dismiss, Docket No. 19 at 16, 17 (“there is no procedural avenue 
19 

DOL reads Kloeckner out of context and that the case did not 

address the peculiar facts presented here. Pl.’s Mem. Opp., 

Docket No. 20 at 6. 

In Kloeckner, the Supreme Court held that an employee who 

brings a mixed case appeal before the MSPB should seek review of 

an adverse MSPB decision in federal district court regardless of 

whether the MSPB decided the case on the merits or dismissed the 

case on procedural grounds. Kloeckner, 133 S.Ct. at 607. 

Kloeckner resolved a circuit split: prior to the decision the 

Eighth and Federal Circuits had held that jurisdiction in 

federal district courts, as opposed to the Federal Circuit, was 

only proper where the MSPB had decided the mixed case appeal on 

the merits, and not where the MSPB had dismissed the case on 

procedural grounds. See Kloeckner v. Solis, 639 F.3d 834 (8th 

Cir. 2011) (opinion below); Ballentine v. Merit Sys. Prot. Bd., 

738 F.2d 1244 (Fed. Cir. 1984). 

In Kloeckner, consistent with precedent from the Eighth and 

Federal Circuits, the government argued that the phrase 

“judicially reviewable action,” as it appears in the CSRA, 

referred only to MSPB decisions on the merits. Kloeckner, 133 

S.Ct. at 606. In rejecting this argument, the Supreme Court held 

 

for pursuing [the Title VII] claims now”). See also 29 C.F.R. 

1614.302(b). 
20 

that “[a]ll the phrase signifies is that the Board should 

dispose of the issue in some way, whether by actually 

adjudicating it or by holding that it was no properly raised.” 

Id. The DOL argues that the Supreme Court’s statement should be 

understood as a limiting principle in that while the MSPB may 

hold on procedural or substantive grounds, the MSPB must 

actually hold on the Title VII issue. Def.’s Mot. Dismiss, 

Docket 19 at 9-10. Due to the ALJ’s silence on the Title VII 

issue in this case, the DOL argues that Ms. Rogers may not 

proceed to court. Id. 

This argument fails. First, in Kloeckner, the Court was not 

confronted with the peculiar facts of this case where, through 

no fault of the employee, the ALJ did not rule on all issues 

raised. Second, the statute does not require the MSPB to issue a 

“judicially reviewable action” before the employee may proceed 

in federal court. Indeed, the CSRA contains a “languishing 

provision” which allows employees to proceed to court in cases 

where an appeal has been pending for 120 days and the Board has 

yet to issue a decision: 

[I]f any time after . . . (B) the 120th day 

following the filing of an appeal with the 

Board under subsection (a)(1) of this 

section, there is no judicially reviewable 

action . . . an employee shall be entitled 

to file a civil action to the same extent 

and in the same manner as provided in 

section 7171(c) of the Civil Rights Act of 

1964. 
21 

5 U.S.C. § 7702(e)(1); see also Butler v. West, 164 F.3d 634, 638 

(D.C. Cir. 2008).4 Pursuant to the languishing provision, Title 

VII cases may proceed to federal district court without the 

agency ever issuing a decision. See e.g., Ikossi v. Dep’t of 

Navy, 526 F.3d 1037, 1041 (D.C. Cir. 2008). Put another way, in 

the Title VII context, there is no requirement that the district 

court actually review the decision of the administrative entity. 

Indeed, given that the district court reviews Title VII claims de 

novo, there is no need for the MSPB to issue a written decision 

prior to this Court hearing the claims. See 5 U.S.C. § 7703(c); 

Robinson v. Duncan, 775 F. Supp. 2d 143, 157 (D.D.C. 2011). The 

DOL’s reading of Kloeckner is unnecessarily restrictive and 

inconsistent with the CSRA read as a whole. Accordingly, the 

ALJ’s silence on the Title VII claims does not bar Ms. Rodgers 

from proceeding in federal court. 

D. The Equities Weigh in Favor of Finding Exhaustion 

In addition to the legal arguments above, both sides raise 

policy arguments in favor of their position. Ms. Rodgers argues 

that the Court should not allow the DOL to benefit from their 

misdeeds before the MSPB. Pl.’s Mem. Opp., Docket 20 at 8. The 

 

4 As the Court described in Kloeckner, the provision is “designed 

to save employees from being held in perpetual uncertainty by 

Board inaction.” Kloecker, 133 S.Ct. at 606(internal quotation 

marks omitted).
22 

DOL argues that allowing Ms. Rodgers to proceed here would be 

sanctioning the DOL for conduct that the ALJ already sanctioned 

below. Def.’s Rep. Pl.’s Mem. Opp., Docket No. 22 at 6. 

“Exhaustion under Title VII, like other procedural devices, 

should never be allowed to become so formidable a demand that it 

obscures the clear congressional purpose of ‘rooting out . . . 

every vestige of employment discrimination within the federal 

government.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) 

(internal citations omitted). Further, a plaintiff may be 

“excused from exhaustion when there are equitable reasons for 

doing so.” Broom v. Caldera, 129 F. Supp. 2d 25, 29 (2001). One 

such “equitable reason” may be bad faith or misconduct on the 

part of the agency. Berry v. Abdnor, 1989 WL 46761, at *2 

(D.D.C. April 20, 1989). Finally, a plaintiff should not be 

deprived of judicial review based on failure to follow 

procedural technicalities of the exhaustion requirement, so long 

as the defendant has been “put on notice” of plaintiff’s claims. 

President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980). 

The equities weigh in favor of finding exhaustion here. The 

DOL’s own misconduct in discovery before the administrative 

tribunal prevented Ms. Rodgers from having her Title VII claim 

adjudicated on the merits. The DOL will not be allowed to 

benefit from this misconduct now. While administrative 

exhaustion may, in many circumstances, serve the interests of 
23 

judicial economy, the interests of justice are not served where 

the DOL fails to participate in the administrative proceedings 

only to later argue that the plaintiff may not proceed in 

federal court. Title VII cannot serve its purposes when the 

plaintiff is prevented from taking discovery on her claims. 

Accordingly, Ms. Rodgers will be permitted to proceed in this 

Court. 

IV. CONCLUSION 

For the reasons stated above, the DOL’s motion to dismiss 

Ms. Rodgers complaint, construed as a motion for summary 

judgment, is DENIED. An appropriate order accompanies this 

Memorandum Opinion. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 September 29, 2015