Spence v. McAleenan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BRIAN SPENCE,

Plaintiff,

v. Civil Action No. 19-2919 (TJK)

CHAD WOLF,

Defendant.

MEMORANDUM OPINION

Brian Spence is a forty-eight-year-old disabled veteran with mild hearing loss. He works

as an Emergency Services Specialist for the United States Secret Service and in July 2017, he

interviewed for a position as a Physical Security Specialist. After he was not selected for the

position, Spence contacted the Secret Service’s Equal Employment Opportunity Office to raise

his concern that this decision was discriminatory. Spence ultimately filed a formal EEO

complaint, which was dismissed for failure to comply with regulatory deadlines. Spence now

brings four claims, alleging disparate impact and disparate treatment under both the Age

Discrimination and Employment Act and the Rehabilitation Act of 1973. Defendant has moved

to dismiss all claims for failure to administratively exhaust and for failure to state a claim upon

which relief can be granted. For the reasons explained below, the Court will grant Defendant’s

motion and dismiss the case.

Background

In July 2017, Spence interviewed for a Physical Security Specialist position within the

United States Secret Service (“Secret Service”). ECF No. 1 (“Compl.”) ¶¶ 17–18. Shortly after

the interview, he accepted a conditional offer of employment contingent on successful
completion of a polygraph and physical examination. Id. ¶¶ 19–20. On January 10, 2018, after

completing the polygraph and physical examination, Spence received a letter stating that he was

not selected for the position. Id. ¶¶ 21–23. The letter said that Spence was “no longer among the

best qualified” and that a “better qualified applicant” had been selected. Id. It contained no

reference to Spence’s physical examination or potential medical disqualification. Id. ¶ 24.

On February 13, 2018, Spence emailed the Secret Service Equal Employment

Opportunity (EEO) Office about the disqualification notice, expressing his view that he had been

denied the job because of his disability. Id. ¶ 27; ECF No. 12 (“Opp’n”) at 8.1 EEO Assistant

Kyong Kim connected Spence to EEO Disability Program Manager David Bruce to discuss his

email. Opp’n at 8. After Bruce spoke with Spence, he referred him back to Kim. ECF No. 10-2

(“Def. Ex.”) at 43. On February 22, Kim emailed Spence to describe the EEO complaint

process—including the requirement that it start within 45 calendar days—and reviewed the

process with Spence by phone. Opp’n at 8. Spence alleges that Kim told him on the phone that

he could not file an EEO complaint until he received notice of the specific basis for his

disqualification. Compl. ¶ 28; Opp’n at 8.

Spence then contacted Special Agent in Charge Kim Cheatle to determine this reason.

Compl. ¶ 29. According to Spence, Cheatle then contacted the Health and Safety Unit, which

informed Cheatle that the only way to obtain the information was to file a FOIA request, and

Spence did so. Opp’n at 9. On February 26, 2018, Spence emailed Kim to inform him of his

FOIA request. Id. Kim emailed Spence the next day to warn him that failure to start the pre-

complaint process within the 45-day period could lead to dismissal of any EEO complaint for

1
The citations in this Memorandum Opinion and Order adopt the pagination in the ECF-
generated headers of the parties’ filings.

2
untimeliness and advised Spence to schedule an intake interview if he wished to pursue an EEO

complaint. Def. Ex. at 7. Spence did not reinitiate contact with the Secret Service EEO Office

again until nearly a year after his initial outreach. Compl. ¶ 33.

Meanwhile, Spence continued to pursue his FOIA request and also reached out to various

officials, including Ombudsman Paul Tyron, to learn the specific reason for his disqualification.

Compl. ¶ 31; Opp’n at 10. In December 2018, Tyron received confirmation that Spence had

been medically disqualified and informed Spence of that on January 25, 2019. Compl. ¶ 32;

Opp’n at 10. Spence then contacted the Secret Service EEO office to launch the pre-complaint

process, making initial contact on February 1, 2019 and completing an intake interview four days

later. Compl. ¶ 33; Opp’n at 10. On March 9, 2019, Spence filed a formal complaint alleging

discrimination based on his age and disability. Compl. ¶ 34; Opp’n at 10; Def. Ex. at 26–27. 2 In

May 2019, Secret Service sent a letter to Spence confirming that his hearing loss rendered him

ineligible for the Physical Security Specialist position and that notification of the specific reason

for his disqualification was delayed “because of an administrative oversight.” Compl. ¶¶ 36–37.

In July 2019, the Department of Homeland Security (“DHS”) Office for Civil Rights and

Civil Liberties (“CRCL”) dismissed Spence’s EEO complaint for violating the time limits for

beginning the pre-complaint process or to provide “adequate justification which would warrant

the waiver, estoppel, or tolling of the time limit.” Def. Ex. at 5–9. DHS CRCL notified Spence

2
The Complaint alleges that Spence filed his formal EEO complaint on March 8, 2019. Compl.
¶ 34. But March 9, 2019 is the date listed on the EEO complaint, Def. Ex. at 26, and Spence
later clarified he filed on March 9, 2019, Opp’n at 10. If Spence was not on notice until January
25, 2019, as he argues, his 45-day window elapsed on March 10, 2019, so both filing dates are
within the limit and this distinction makes no difference.

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of his right to file a civil action with the appropriate United States District Court within 90 days

of the final administrative decision. Id. at 10–11.

On September 27, 2019, Spence filed this action under the Age Discrimination and

Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Rehabilitation Act of 1973

(“Rehabilitation Act”), 29 U.S.C. § 790 et seq. Spence alleges disparate treatment under the

ADEA, Compl. ¶¶ 49–59 (“Count I”), and Rehabilitation Act, id. ¶¶ 70–78 (“Count III”), and

disparate impact under the ADEA, id. ¶¶ 60–69 (“Count II”) and Rehabilitation Act, id. ¶¶ 79–

86 (“Count IV”).3 Before the Court is Defendant’s motion to dismiss Spence’s complaint under

Rules 12(b)(1) for failure to administratively exhaust and under Rule 12(b)(6) for failure to state

a claim. ECF No. 10 (“Def. MTD”).

Legal Standards

To survive a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a

plaintiff bears the burden of showing that the court has such jurisdiction. Doak v. Johnson, 19 F.

Supp. 3d 259, 267 (D.D.C. 2014) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

“When reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court must accept as true all

of the factual allegations contained in the complaint.” Gordon v. Office of the Architect of the

Capitol, 750 F. Supp. 2d 82, 86 (D.D.C. 2010). Still, the Court must give a plaintiff’s factual

allegations closer scrutiny than it would under a 12(b)(6) motion, to ensure it is acting within the

scope of its jurisdiction. Doak, 19 F. Supp. 3d at 267. The Court is thus “not limited to the

allegations set forth in the complaint, but ‘may consider materials outside [of] the pleadings.’”

3
Defendant Chad Wolf, who assumed office as Acting Secretary of Homeland Security in
November 2019, is automatically substituted for Kevin K. McAleenan under Federal Rule of
Civil Procedure 25(d).

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Ragsdale v. Holder, 668 F. Supp. 2d 7, 14 (D.D.C. 2009) (quoting Jerome Stevens Pharms., Inc.

v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)).

To survive a Rule 12(b)(6) 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)). A claim is facially plausible when the pleading “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. A court must construe the

complaint in the light most favorable to the plaintiff, but the plaintiff “must furnish ‘more than

labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action.’” Tyler v.

D.C. Hous. Auth., 113 F. Supp. 3d 88, 90 (D.D.C. 2015) (quoting Twombly, 550 U.S. at 555).

When reviewing a 12(b)(6) motion, “a court may consider the facts alleged in the

complaint, documents attached to the complaint as exhibits or incorporated by reference, and

matters about which the court may take judicial notice.” Fort Sill Apache Tribe v. Nat’l Indian

Gaming Comm’n, 103 F. Supp. 3d 113, 117 (D.D.C. 2015). Generally, if a court relies on

matters outside the pleadings, then a motion to dismiss must be treated as one for summary

judgment under Rule 56. See Fed. R. Civ. P. 12(d). “However, where a document is referred to

in the complaint and is central to the plaintiff's claim, such a document attached to the motion

papers may be considered without converting the motion to one for summary judgment.”

Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 F.App’x 4 (D.C. Cir. 2002).

“Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by

failing to attach a dispositive document on which it relied.” Pension Benefit Guar. Corp. v.

White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). “Moreover, a document need

not be mentioned by name to be considered referred to or incorporated by reference into the

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complaint.” Strumsky v. Washington Post Co., 842 F. Supp. 2d 215, 218 (D.D.C. 2012)

(quotation marks omitted).

A court may consider a plaintiff’s EEO complaint and notice of charge without

converting a motion to dismiss into a motion for summary judgment “because such records are

public documents of which a court may take judicial notice.” Sanders v. Kerry, 180 F. Supp. 3d

35, 41 (D.D.C. 2016) (cleaned up). A court may also rely on final agency decisions, especially

to the extent they provide “background information such as dates of filings.” Vasser v.

McDonald, 228 F. Supp. 3d 1, 10 (D.D.C. 2016); see also Williams v. Chu, 641 F. Supp. 2d 31,

34–35 (D.D.C. 2009) (relying on date EEOC denied appeal and date the plaintiff received notice

of denial to decide on merits).

Analysis

A. Rehabilitation Act Claims

Spence asserts two claims under the Rehabilitation Act: that he was disparately treated as

a result of his disability—hearing loss—and that the hearing requirements for the Physical

Security Specialist position disparately impact the disabled. Defendant argues that both claims

should be dismissed under Rule 12(b)(1) for lack of subject-matter jurisdiction because Spence

failed to exhaust available administrative remedies.

The Rehabilitation Act allows a complainant to sue only after the agency has reached a

final disposition or failed to act on his complaint. See 29 U.S.C. § 794a(a)(1). As a result, it is

clear that federal courts lack jurisdiction over alleged discriminatory conduct when a plaintiff has

not filed a complaint. Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006). That said, the D.C.

Circuit held in Doak v. Johnson that the exhaustion requirement does not attach “irremediable

jurisdictional consequence to every procedural misstep.” 798 F.3d 1096, 1104 (D.C. Cir. 2015).

Doak distinguished between the Rehabilitation Act’s statutory requirements and those non-

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statutory requirements created by the EEOC. Id. The court held that while a failure to comply

with the requirements of the informal process created by EEOC regulation might prevent a party

from exhausting her claim administratively, that failure should not prevent her from suing if she

is “aggrieved by the final disposition of such complaint, or by the failure to take final action on

such complaint.” 29 U.S.C. § 794a(a)(1).

Thus, to decide Defendant’s motion to dismiss, the Court must determine whether

Spence’s claims are administratively exhausted, whether any such failure is jurisdictional, and if

not, whether that failure should be excused on equitable grounds.

1. Count III (Disparate Treatment)

Spence alleges that the Secret Service unlawfully discriminated against him because of

his disability when it did not select him for the Physical Security Specialist role. In support of its

motion to dismiss, Defendant argues that Spence failed to start the complaint process within 45

days of the date of the discrimination and that as a result, this court lacks subject-matter

jurisdiction.

The relevant regulations require that “[a]n 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).

To satisfy the contact requirement, “an employee who believes that she has been the subject of

discrimination must timely (1) contact an agency official ‘logically connected’ with the EEO

process (not necessarily a Counselor) and (2) demonstrate an intent to begin the EEO process.”

Boone v. Clinton, 675 F. Supp. 2d 137, 143 (D.D.C. 2009).

Spence’s claims stem from the non-selection notice he received on January 10, 2018, so

the 45-day window for beginning the pre-complaint process closed on February 24, 2018.

Spence contacted the Secret Service EEO Office during this period, but regrettably for him, he

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did not demonstrate the intent to begin the pre-complaint process until long after the window had

closed. In his initial email, he referenced his non-selection and asked if someone in the EEO

office “could meet with [him] and please explain this to [him].” See Def. Ex. at 45. In a later

email, Kim flagged the 45-day deadline for Spence and asked if he wished to schedule an intake

interview, making clear that Spence had not formally begun the process. See id. at 41–42.4

Spence did not respond. Id. While a Rule 12(b)(6) motion requires the Court to make factual

inferences in favor of the nonmoving party, it does not require the Court to accept mere labels

and conclusions. See Twombly, 550 U.S. at 555. Spence has not plead facts to show that he had

an intent to begin the EEO complaint process until February 2019, well after the closure of the

45-day window, when he “reinitiated contact” with the EEO office. Compl. ¶ 33. Thus, his

attempt to exhaust his administrative remedies was untimely. 5

4
Spence does not dispute the content of these emails nor contest that Kim discussed the 45-day
deadline with him. See ECF No. 12-1 ¶ 31. Because Spence referenced his communication with
the EEO office in his complaint, see Compl. ¶ 27-28, and the existence of that contact is “central
to plaintiff's claim,” see Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C.1999), the Court
may consider these documents, which are attached to the motion to dismiss. See also Charles
Allen Wright et al., 5C Federal Practice and Procedure § 1366 n.34 (3d ed. 2010) (“On a motion
to dismiss for failure to state a claim, a defendant may submit an indisputably authentic copy of a
document referred to in the complaint and central to the plaintiff’s claim even though the
plaintiff did not incorporate the document by reference or attach it to the complaint.”).
5
Courts sometime assess an employee’s intent to begin the EEO process by her level of
engagement with the EEO office. See Moss v. Perry, E.E.O.C. DOC 01962472, 1997 WL
91106, at *2 (Feb. 24, 1997) (finding intent where “appellant did not simply send the letter and
do nothing. Rather, she actively pursued her complaint, as evidenced by her correspondence to
EEO officials over the next several months.”). Unlike the plaintiff in Moss, Spencer ceased
communication with the EEO Office for nearly a year and did not stay in contact about his
complaint. Instead, after his initial outreach, Spence failed to respond to emails from an EEO
official who tried to engage him in the formal complaint process. Similarly, Spence’s
notification that he wished to pursue his FOIA request before filing a complaint does not support
his assertion that he continued to engage in the administrative process. See Snyder v. Dept. of
Defense, E.E.O.C. DOC 05901061, 1990 WL 1113251, at *2 (Nov. 1, 1990) (dismissing claims
as untimely after EEO warned of applicable time limits and the plaintiff decided to pursue

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 Nonetheless, the D.C. Circuit was clear in Doak that “[t]he deadline for contacting an

EEO Counselor is not jurisdictional.” Doak, 798 F.3d at 1104. A claim unexhausted because of

failure to meet regulatory deadlines is instead subject to dismissal under Rule 12(b)(6) for failure

to state a claim upon which relief can be granted. See Horvath v. Dodaro, 160 F. Supp. 3d 32,

49 (D.D.C. 2015). The Rehabilitation Act’s “time limits function like statutes of limitations, and

thus are subject to equitable tolling, estoppel, and waiver.” Doak, 798 F.3d at 1104 (cleaned up).

Thus, Spence can avoid dismissal of this claim if “he qualifies for equitable relief from

the deadline by demonstrating good cause for the procedural failure.” Niskey v. Kelly, 859 F.3d

1, 7 (D.C. Cir. 2017). Defendant argues that equitable remedies are unavailable here. But this

argument misreads Doak, which clearly states that while such remedies are unavailable when a

failure to exhaust implicates jurisdiction, they are available where there is only a misstep in

regulation-prescribed procedure. 798 F.3d at 1104. Thus, the 45-day limit is subject to

extension if a plaintiff can show he “was not notified of the time limits,” “did not know and

reasonably should not [know] that the discriminatory matter . . . occurred,” or “that despite due

diligence he . . . was prevented by circumstances beyond his . . . control from contacting the

counselor within the time limits.” 29 C.F.R. § 1614.105(a)(2). Such extensions should be

granted “only in extraordinary and carefully circumscribed instances.” McCants v. Glickman,

180 F. Supp. 2d 35, 40 (D.D.C. 2001). Spence bears the burden of showing equitable grounds

for failing to meet the 45-day limit. Id.

another avenue of relief despite being warned that a future complaint may be untimely).
Similarly, the EEO Office warned Spence of the 45-day time window, and he abandoned the
EEO process for nearly a year while he pursued another channel of inquiry. Compl. ¶¶ 27–33;
Def. Ex. at 7.

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 Spence asserts that he is entitled to such relief because the Secret Service did not

formally tell him the reason for his non-selection until May 2019. But a plaintiff need not wait

until he discovers facts that support his discrimination claim to engage in counseling and file an

EEO complaint. McCants, 180 F. Supp. 2d at 40. Spence’s suit should be dismissed as untimely

if he “suspected a discriminatory motive for the action much earlier” even if he “did not learn the

full facts supporting his claim until shortly before he filed his charge.” Id. But Spence’s

allegations in this case and during his belated EEO process make clear that he suspected his

disability was the reason for his non-selection when he first contacted the EEO office on

February 13, 2018. For example, he concedes that his initial contact with the EEO was related to

the January 10, 2018, non-selection. Compl. ¶ 27 (“Spence first contacted the USSS EEO office

. . . after receiving USSS’s January 10, 2018, notice of disqualification.”). And it seems apparent

that he contemplated filing a formal complaint at that time. Id. ¶ 28 (Kim allegedly “informed

Spence that he could not file a complaint because he had a received only a general

disqualification letter”). That he chose not to do so cannot provide the basis for equitable tolling.

McCants, 180 F. Supp. 2d at 42 (“By waiting until he learned this information, Mr. McCants put

the USDA in the very position that the time limitations are intended to avoid—that of having to

defend against a stale claim.”).

Spence also alleges that Kim discouraged him from pursuing his EEO complaint during

their February 22, 2018 phone call, and therefore, Defendants should be equitably estopped from

arguing that he failed to administratively exhaust. Opp’n at 27. Spence alleges that on the

February 22, 2018 phone call, Kim told him “he could not file a complaint because he had

received only a general disqualification letter and, as a result needed to confirm USSS’s specific

reason for disqualifying him.” Compl. ¶ 28; Opp’n at 27. A plaintiff may invoke equitable

10
estoppel when the defendant “has taken active steps to prevent the plaintiff from litigating in

time.” Hall v. Dept. of Commerce, No. 16-1619, 2018 WL 2002483, at *4 (D.D.C. Apr. 30,

2018). But the problem for Spence is that courts have “routinely found that a government

employee’s erroneous advice cannot alone give rise to an equitable estoppel claim.” Id. (citing

cases).

For these reasons, the Court will dismiss Count III for failure to state a claim on which

relief can be granted because Spence failed to exhaust his administrative remedies.

2. Count IV (Disparate Impact)

Spence also claims that “hearing requirements for Physical Security Specialists, if true,

disparately impact employees and applicants with disabilities” in violation of the Rehabilitation

Act. Compl. ¶ 81. Defendant first argues that Spence failed to raise this disparate-impact claim

in his EEO complaint. As “failure to provide notice of a particular claim is no different—as far

as that claim goes—than a wholesale failure to file,” Defendant moves to dismiss the claim under

Rule 12(b)(1) for lack of subject-matter jurisdiction. McIver v. Mattis, 318 F. Supp. 3d 245, 251

(D.D.C. 2018)

A court’s authority only extends to claims that are “contained in the plaintiff’s

administrative complaint or claims ‘like or reasonably related to’ those claims in the

administrative complaint.” Hudson v. Children’s Nat. Med. Ctr., 645 F. Supp. 2d 1, 3 (D.D.C.

2009) (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). These requirements

give “the charged party notice of the claim” and “narrow[] the issues for prompt adjudication and

decision.” Park, 71 F.3d at 907.

Spence did not raise a disparate-impact claim under the Rehabilitation Act in his EEO

complaint. He alleged that “the US Secret Service offices of Human Resources (HUM), Health

and Safety (SAF) have discriminated against me by denying my transfer to the Technical

11
Security Division due to hearing loss.” Def. Ex. at 28. This is a disparate-treatment claim that

focuses on discrimination against Spence. Moreover, when Spence later amended his complaint

and added claims, he did not add a disparate impact claim for discrimination against others. See

id. at 20–21.

Acknowledging that he never alleged disparate-impact claims during the administrative

process, Spence argues that his claim here is related to the allegations raised in his EEO

complaint and therefore was exhausted all the same. Exhausted “claims must arise from the

administrative investigation that can reasonably be expected to follow the charge of

discrimination.” Park, 71 F.3d at 907. Spence’s EEO complaint identifies a Secret Service

employment policy related to hearing requirements for the Physical Security Specialist position

and alleges that the policy was responsible for him not getting the job. Def. Ex. at 28–29. The

Court finds that is enough to have put the Secret Service on notice to investigate the policy.

Ramseur v. Perez, 962 F. Supp. 2d 21, 27 (D.D.C. 2013). Thus, because Spence’s Rehabilitation

Act disparate impact claim is “like or reasonably related to” those advanced in his EEO

complaint, it has been exhausted, and the Court holds that it has subject-matter jurisdiction over

it.

But subject-matter jurisdiction is not enough to save this claim, as it still suffers from the

same timeliness problem as Spence’s disparate-treatment claim. Spence did not start the EEO

process until long past the 45-day deadline, and he has not shown that equitable remedies should

toll the deadline. Thus, the Court will also dismiss Count IV for failure to state a claim because

Spence failed to exhaust his administrative remedies.

B. Age Discrimination in Employment Act Claims

Along with his disability discrimination claims, Spence brings claims for both disparate

treatment and for disparate impact under the Age Discrimination in Employment Act. He alleges

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that the Secret Service discriminated against him “when it denied him the position of Physical

Security Specialist because of his hearing loss which is consistent with individuals over the age

of forty.” Compl. ¶ 54. He also alleges that the hearing requirements for Physical Security

Specialists disparately impact those over 40, in violation of the ADEA. Id. ¶ 63.

1. Count I (Disparate Treatment)

For the same reasons the Court dismissed Spence’s disparate treatment claim under the

Rehabilitation Act, it must also dismiss his disparate treatment claim under the ADEA. Spence

began the EEO process after the regulatory deadline, and he has not shown that equitable

remedies should extend that deadline. Thus, the Court will dismiss Count I for failure to state a

claim on which relief can be granted because Spence failed to exhaust his administrative

remedies.

2. Count II (Disparate Impact)

Defendant argues that Spence’s disparate-impact claim under the ADEA must be

dismissed for lack of subject matter jurisdiction because it is not authorized under that statute.

The ADEA subjects all employers to disparate-treatment liability, see Aliotta v. Bair, 614 F.3d

556, 561 (D.C. Cir. 2010), and the ADEA authorizes disparate impact claims against non-federal

employers, see Smith v. City of Jackson, 544 U.S. 228, 239 (2005). But it remains unsettled

whether the ADEA waives sovereign immunity and authorizes disparate-impact claims against

the federal government. Neither the Supreme Court nor the D.C. Circuit have addressed this

question. But several judges in this District have declined to recognize such claims. See

Anderson v. Duncan, 20 F. Supp. 3d 42, 62–64 (D.D.C. 2013); Allard v. Holder, 840 F. Supp. 2d

269, 278–81 (D.D.C. 2012); Am. Fed’n of Gov’t Emps. TSA Local 1 v. Hawley, 481 F. Supp. 2d

72, 91–92 (D.D.C. 2006); Silver v. Leavitt, Civ. No. 05-0968, 2006 WL 626928, at *13 (D.D.C.

Mar. 13, 2006); Evans v. Atwood, 38 F. Supp. 2d 25, 28–30 (D.D.C. 1999). But see Breen v.

13
Peters, 474 F. Supp. 2d 1, 6–7 (D.D.C. 2007) (finding the federal-employer section includes both

disparate treatment and impact claims “as both methods of proof seek redress for illegal

discrimination”).

These courts concluded that the text and structure of the ADEA do not authorize such

claims. While private employers and state and local governments can be held liable through one

statutory authorization—29 U.S.C. § 623(a)(2)—a separate authorization governs suits against

the federal government. 29 U.S.C. § 633a. The former provides that “[i]t shall be unlawful for

an employer . . . to limit, segregate, or classify his employees in any way which would deprive or

tend to deprive any individual of employment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s age.” § 623(a)(2). In contrast, the federal-

government discrimination ban—added through a 1974 amendment “patterned directly after the

federal-sector discrimination ban in Title VII of the Civil Rights Act,” Anderson v. Duncan, 20

F. Supp. 3d 42, 60 (D.D.C. 2013) (cleaned up) (citing Gomez–Perez v. Potter, 553 U.S. 474, 487

(2008))—merely provides that “[a]ll personnel actions affecting employees . . . shall be made

free from any discrimination based on age,” 29 U.S.C. § 633a. And in City of Jackson, the

Supreme Court’s determination that the ADEA authorizes disparate-impact claims against non-

federal employers appears to have turned on this distinction. As the Court explained, “[n]either

[Title VII] nor the comparable language in the ADEA simply prohibits actions that ‘limit,

segregate, or classify’ persons; rather the language prohibits such actions that ‘deprive any

individual of employment opportunities or otherwise adversely affect his status as an employee,

because of such individual’s’ race or age.” 544 U.S. at 235 (citing Watson v. Fort Worth Bank &

Trust, 487 U.S. 977, 991 (1988) and quoting Title VII). The text of the federal government

discrimination ban, at issue here, does not include this expansive language. See Allard, 840 F.

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Supp. 2d at 279–80 (“The federal section’s language is simple and plain, and neither expressly

nor impliedly authorizes disparate-impact claims . . . when, and if, the Congress chooses to do so

expressly, such claims will be cognizable by this Court.”); Evans, 38 F. Supp. 2d at 30 (“The text

of the ADEA does not specifically provide for disparate impact claims, and (unlike Title VII)

Congress has not sought to amend the statute to include such claims.”). For this reason, the

Court also holds that such disparate impact claims are not cognizable under the ADEA, and it

will dismiss Count II for lack of subject-matter jurisdiction. The Court also notes that, even if it

had subject-matter jurisdiction over Count II, it would dismiss it for failure to state a claim

because, as with Counts I, II, and IV, Spence did not exhaust his administrative remedies.

Conclusion

For all these reasons, the Court will grant Defendant’s Motion to Dismiss, ECF No. 10.

A separate order will issue.

/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge

Date: October 15, 2020

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