Barker v. McFerran

Background

Caroline Barker, representing herself, sued Lauren McFerran, identified as Chairperson of the National Labor Relations Board, based on allegations related to Barker’s employment with the agency. Barker alleged claims under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Rehabilitation Act. The claims concerned race, color, national origin, sex, age, disability, hostile work environment, retaliation, and failure to provide workplace accommodations.

Barker alleged that the agency delayed providing an ergonomic chair and never provided an ergonomic keyboard. She also alleged that she applied for various positions but was not selected and that younger employees received promotions. Her amended complaint referred to an administrative judge’s decision and a later agency decision concerning an earlier discrimination complaint. The administrative judge had awarded her $8,625 in compensatory damages for the six-year delay in providing the ergonomic chair, and the agency adopted that decision.

McFerran moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. The motion challenged all claims except Barker’s Rehabilitation Act claim based on the delayed ergonomic chair.

Administrative exhaustion

The court held that Barker had not adequately alleged completion of the required administrative process for claims based on events before November 24, 2014. Those events included the failure to provide an ergonomic keyboard, several unsuccessful applications or expressions of interest dating from 2005 through 2011, and promotions received by other employees in 2011, 2012, and 2013. The court rejected Barker’s argument that these discrete acts were timely under the continuing-violation doctrine. It explained that older discrete acts, such as a failure to promote or a refusal to provide an accommodation, generally cannot be revived merely because they are related to later events.

The court dismissed the Title VII, Rehabilitation Act, and ADEA claims based on pre-November 24, 2014 events with prejudice because Barker had already been given an opportunity to allege administrative exhaustion and had not done so.

Barker also alleged that she applied for a Program Support Assistant position in or around November 2023 and was found ineligible. The court found that she had not alleged administrative exhaustion for that claim but concluded that she might be able to do so. The failure-to-promote claim based on that application was therefore dismissed with leave to amend, with one final opportunity to amend.

Title VII claims

The court dismissed with prejudice Barker’s Title VII claim based on the failure to provide an ergonomic chair or keyboard. The court had previously found that Barker did not allege that those actions materially affected the terms, conditions, or privileges of her employment, and Barker did not address that issue in her opposition.

The court also dismissed Barker’s Title VII claim based on the November 2023 denial of promotion because the amended complaint did not allege facts plausibly showing that the denial occurred because of her race, color, national origin, or sex. The court did not consider additional factual assertions made only in Barker’s opposition brief. It granted one final opportunity to amend this claim.

Age-discrimination claim

The court dismissed with prejudice Barker’s ADEA claims based on events before November 24, 2014 because she did not allege the required administrative exhaustion. It also dismissed the ADEA claim concerning the November 2023 promotion denial because the amended complaint did not allege facts supporting an inference that Barker was denied the promotion because of her age or that it was given to a substantially younger person. The court granted one final opportunity to amend that claim.

Rehabilitation Act claims

The court dismissed with prejudice Barker’s Rehabilitation Act disability-discrimination claim. Barker did not respond to McFerran’s argument that the amended complaint failed to plausibly allege an adverse employment action caused by Barker’s disability.

The court also dismissed with prejudice the Rehabilitation Act failure-to-accommodate claim based on the ergonomic keyboard. Barker did not respond to the argument that she had not plausibly alleged that she made a reasonable accommodation request for an ergonomic keyboard that was denied.

The Rehabilitation Act claim based on the delayed ergonomic chair was not challenged in this motion and remained part of the case. The order directed that any second amended complaint should include that claim.

Hostile-work-environment and retaliation claims

The court dismissed the hostile-work-environment claim with prejudice. Barker did not respond to the argument that she had failed to allege conduct sufficiently severe or pervasive to change the conditions of her employment or that the alleged harassment occurred because of a protected characteristic.

The court dismissed the retaliation claim with prejudice. Barker had not alleged what protected activity led to the alleged retaliation or a causal connection between protected activity and an adverse employment action. She also did not address the claim in her opposition.

Disposition

Judge Ryu granted McFerran’s motion to dismiss portions of the amended complaint. With prejudice, the court dismissed claims based on pre-November 24, 2014 events; the Title VII chair-and-keyboard claims; the Rehabilitation Act disability-discrimination claim; the Rehabilitation Act keyboard-accommodation claim; the hostile-work-environment claim; and the retaliation claim. With leave to amend, and with one final opportunity, the court dismissed the failure-to-promote claim concerning the November 2023 application and the related Title VII and ADEA claims. The order stated that a second amended complaint could include Title VII and ADEA claims based only on the alleged November 2023 promotion denial, along with the unchallenged Rehabilitation Act chair-accommodation claim.