Barker v. McFerran

Background

Caroline Barker, a self-represented plaintiff, sued Lauren McFerran, chairperson of the National Labor Relations Board, over employment-related allegations. The second amended complaint asserted three claims: (1) disability discrimination under the Rehabilitation Act based on the denial of an ergonomic chair; (2) race, color, and national-origin discrimination under Title VII based on Barker’s November 2023 failure to obtain a Program Support Assistant position; and (3) age discrimination under the Age Discrimination in Employment Act based on the same failure to promote.

The present motion concerned only the Title VII and ADEA claims. In earlier rulings, the court had allowed Barker an opportunity to amend those claims to allege that she had exhausted the required administrative process. The court had also left her Rehabilitation Act reasonable-accommodation claim concerning the ergonomic chair in the case.

Legal standard

A motion under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint states a legally sufficient claim. The court accepts the complaint’s factual allegations as true for this purpose, but a claim must include enough factual matter to make relief legally plausible. The court also liberally construes filings from a person representing herself, but that rule does not supply essential facts that the complaint does not allege.

Federal employees must generally complete specified administrative procedures before filing employment-discrimination claims in federal court. For Title VII, the employee must notify an equal-employment-opportunity counselor within 45 days of the alleged discriminatory conduct. The ADEA provides administrative-exhaustion requirements as well, including the 45-day counselor-notice process or an alternative involving notice to the Equal Employment Opportunity Commission and notice of intent to sue.

Court’s analysis

The court held that the second amended complaint did not fix the exhaustion problem previously identified for the Title VII claim. Barker did not allege that she timely contacted an equal-employment counselor about the November 2023 failure to promote. Barker instead admitted that she had not pursued an administrative remedy concerning that decision and argued that, after 24 years at the agency, she did not expect an additional charge to change anything.

The court concluded that Barker could not allege timely counselor contact regarding the promotion decision. Because she had already been given an opportunity to amend the Title VII claim to allege exhaustion, the court dismissed that claim with prejudice.

The court reached the same result for the ADEA claim. Barker did not allege exhaustion through either of the described administrative routes. Because she had already had an opportunity to amend the ADEA claim to allege exhaustion, the court dismissed that claim with prejudice as well.

The court expressly did not reach McFerran’s alternative argument that the second amended complaint lacked sufficient facts to state the discrimination claims.

Disposition

The court granted McFerran’s motion to dismiss the Title VII and ADEA claims based on the November 2023 failure to promote. Those claims were dismissed with prejudice. The sole remaining claim was Barker’s Rehabilitation Act claim for failure to accommodate based on the denial of an ergonomic chair.