Barker v. McFerran

Background

Caroline Barker, who was self-represented, sued Lauren McFerran, identified in the opinion as Chairperson of the National Labor Relations Board (NLRB). Barker alleged that the NLRB discriminated against and retaliated against her in connection with her employment. She identified race, color, national origin, sex, age, and physical and mental disability as alleged bases for discrimination.

Barker alleged that the NLRB delayed providing an ergonomic chair and other equipment, failed to provide training and promotions or pay increases, created a hostile work environment, and retaliated against her. She had filed an administrative discrimination complaint with the NLRB’s Equal Employment Opportunity office. In that proceeding, an administrative judge awarded her $8,625 in compensatory damages for the six-year delay in providing the ergonomic chair, and the NLRB adopted that decision. Barker then filed this lawsuit, challenging the amount of the award as inadequate.

Administrative Exhaustion

The court held that federal employees must complete the required administrative process before bringing Title VII, Rehabilitation Act, or Age Discrimination in Employment Act claims in federal court. For the Title VII and Rehabilitation Act claims, Barker confirmed that she contacted an Equal Employment Opportunity counselor on January 8, 2015. The court therefore concluded that, as currently pleaded, she had not adequately shown exhaustion for events before November 24, 2014, which was 45 days before that contact.

The court treated exhaustion as a mandatory claim-processing requirement rather than a jurisdictional requirement and analyzed the issue under the rule governing failure to state a claim. It also explained that a hostile-work-environment claim may include earlier conduct if at least one contributing act occurred within the filing period, but separate discriminatory acts outside the filing period cannot be revived merely because they relate to timely acts.

The court reached a similar conclusion concerning the ADEA claim. Barker had not alleged that she gave the Equal Employment Opportunity Commission notice of the alleged discriminatory acts and her intent to sue. As pleaded, the court found that the ADEA claim was exhausted only for events after November 24, 2014. The court granted Barker leave to amend to identify the relevant dates and clarify her administrative contacts.

Claims and Pleading Deficiencies

The court dismissed Barker’s Title VII disparate-treatment allegations with leave to amend. It found that the alleged delay in providing an ergonomic chair and the failure to provide an ergonomic keyboard were not alleged to have materially affected the terms or conditions of her employment. The court likewise found that Barker had not alleged that the failure to receive training materially affected her position, compensation, or another employment term. Although failure to promote or provide pay increases can qualify as adverse employment actions, the court found that Barker had not alleged facts showing that she applied for promotions or vacancies and was denied them, or facts supporting an inference that similarly situated employees received increases to which she was also entitled.

The court dismissed Barker’s ADEA disparate-treatment claim with leave to amend because she did not allege facts supporting an inference that her treatment was because of her age. Although she alleged that she was over 40 and older than the other Program Support Assistants, she did not allege that the comparators were substantially younger or provide other facts connecting the alleged treatment to age.

The court dismissed Barker’s Rehabilitation Act disability-discrimination claim with leave to amend because the complaint did not allege facts supporting an inference that she suffered an adverse employment action because of her disability.

The court reached a different result on Barker’s Rehabilitation Act failure-to-accommodate claim. Barker alleged that she requested an ergonomic chair, that a human-resources professional acknowledged and approved the request, and that the NLRB did not provide the chair until 2015. The court denied the motion to dismiss that claim as inadequately pleaded.

The court dismissed the hostile-work-environment claim with leave to amend. It found that the complaint did not provide enough detail to support an inference that the delayed chair and alleged failure to promote were severe or pervasive enough to alter Barker’s working conditions, or that the alleged harassment occurred because of a protected characteristic.

The court also dismissed the retaliation claim with leave to amend because Barker did not clearly identify the protected activity she believed led to retaliation or allege facts showing a causal connection between that activity and an adverse employment action.

Disposition

The court granted McFerran’s motion to dismiss. It dismissed Barker’s complaint with leave to amend and allowed 21 days from the date of the order to file an amended complaint. The amended complaint was required to clearly identify each claim, the events supporting it, the dates of those events, and the dates Barker contacted an Equal Employment Opportunity counselor about them.