Zachary Reynolds v. Frank Kendall III ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0047n.06
No. 22-3449
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
) FILED
ZACHARY P. REYNOLDS,
)
Plaintiff-Appellant, Jan 20, 2023
)
DEBORAH S. HUNT, Clerk
)
v. )
)
FRANK KENDALL III, Secretary of the United ) ON APPEAL FROM THE
States Air Force; AMANDA SMITH, In her personal ) UNITED STATES DISTRICT
and professional capacities; JEFFREY ) COURT FOR THE SOUTHERN
FREDERICK, In his personal and professional ) DISTRICT OF OHIO
capacities; LISETTE LEDUC, In her personal and )
professional capacities; JOSEPH LEISING, In his ) OPINION
personal and professional capacities; UNITED )
STATES OF AMERICA, )
Defendants-Appellees. )
)
Before: BUSH, LARSEN, and MATHIS, Circuit Judges.
LARSEN, Circuit Judge. Zachary Reynolds is a disabled former employee of the United
States Air Force. He claims that his supervisors retaliated against him after he reported them for
promoting gambling activities in violation of Air Force regulations. Consequently, he sued them
under the Whistleblower Protection Act, the Rehabilitation Act, and the Federal Tort Claims Act.
The district court dismissed his claims. Reynolds appeals, and we AFFIRM.
I.
Zachary Reynolds worked as a civilian Air Force employee at the Air Force Research
Laboratory (AFRL Contracting) at Wright-Patterson Air Force Base in Ohio until November 2020,
when he took a new job with the Environmental Protection Agency. Because of an injury Reynolds
sustained in a car accident, the Air Force offered him limited work accommodations from 2004 to
No. 22-3449, Reynolds v. Kendall
2017. These accommodations included giving him extra time to complete his work, excusing him
from tasks involving fine motor skills, and providing him with employee assistance for manual
office tasks. Reynolds received satisfactory, and sometimes even glowing, performance appraisals
for much of his Air Force career, and he was awarded Mentor of the Quarter in the fourth quarter
of 2016. Reynolds claims, however, that this all changed in late 2017 after he emailed an AFRL
Contracting manager, complaining that his office’s regular gambling-related activities violated Air
Force regulations. In particular, Reynolds pointed to an August 18, 2017 email from a supervisor
announcing an office-wide going-away party at a nearby casino as well as several emails from
another supervisor, Amanda Smith, promoting the sale of raffle tickets. As a result of Reynolds’s
complaint, the manager cancelled the casino event and told Reynolds that the use of raffles for
fundraising would end.
Reynolds alleges that the cancellation of these events led his supervisors to engage in a
pattern of “retaliatory behavior” that lasted for years. This behavior included, among other things,
verbally admonishing him for the email he sent to the contracting manager, excluding him from
office events, mocking his disability, and directing employees to stop helping him with fine motor
tasks. In addition, in February 2018, Reynolds forgot his identification card at his desk, and Smith
drafted a letter threatening Reynolds with termination if he forgot his card again. In response,
Reynolds filed a grievance through the Negotiated Grievance Procedure in the Air Force Material
Command Master Labor Agreement. His grievance requested the removal of the letter from his
file, explained that another employee had received no reprimand even though he also left his badge
at his desk, and requested a transfer out of Smith’s department. Joseph Leising, Smith’s boss,
denied the grievance, and Reynolds appealed. Lisette Leduc, an Air Force manager, granted
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Reynolds partial relief on appeal: the reprimand letter was removed from Reynolds’s file, though
Leduc denied his requested transfer.
In May 2018, Reynolds requested telework and sick leave to accommodate his disabilities.
A new supervisor, Jeffrey Frederick, denied this accommodation. In 2018, Reynolds also applied
for a promotion, but Smith refused to hold preparation sessions with him, even though she did so
for other employees; Reynolds was ultimately denied the promotion. In November 2018, one of
Reynolds’s job duties “w[as] taken away,” which he alleges was retaliatory. Reynolds also alleges
that around this time his supervisors “conspired to omit key appraisal data” from his personnel file
in an “on-going intentional effort” to deprive him of his protected interest in his federal
employment. Around December 2018, after learning that Reynolds was transferring to another
office, Frederick finally approved Reynolds’s disability requests. In July 2019, Frederick also
adversely manipulated Reynolds’s appraisal. In November 2019, Reynolds requested expanded
telework in the winter months to accommodate his disability. According to Reynolds, the Air
Force requested “an onerous list of medical information” but never approved his request.
Seeking redress for this allegedly retaliatory conduct, Reynolds filed a Federal Tort Claims
Act (FTCA) claim on December 11, 2019, which the Air Force acknowledged on January 10,
2020. At this time, he also filed a complaint with the Air Force’s Equal Employment Opportunity
Office (EEO) at Wright-Patterson Air Force Base. The EEO investigation concluded with a final
agency decision issued on March 26, 2020. The final decision dismissed Reynolds’s claims for
failing to submit them within 45 days of the alleged retaliatory conduct. Reynolds first contacted
the EEO counselor on December 11, 2019, but his complaint referenced only “actions that date
back to August 2017 and the appraisal action produced in July 2019.” Reynolds did not raise his
November 2019 request for expanded telework in the EEO complaint.
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After the EEO dismissed his complaint, Reynolds brought this lawsuit in federal court,
alleging that the Air Force, Smith, Frederick, Leduc, and Leising violated the Rehabilitation Act,
the FTCA, and the Whistleblower Protection Act. The district court substituted the United States
for the individual defendants, and the United States then moved to dismiss under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). Reynolds also moved for fees and costs for failure to waive
service and to substitute defendants Smith and Frederick as defendants in their individual
capacities. The district court dismissed all of Reynolds’s claims. Reynolds appeals the dismissal
of his claims under the Rehabilitation Act and FTCA and the denial of his motions for fees and
costs and to substitute defendants.1
II.
We typically review a district court’s dismissal of a claim under Rule 12(b)(1) or 12(b)(6)
de novo. Mohlman v. Fin. Indus. Regul. Auth., 977 F.3d 556, 558 (6th Cir. 2020). “This standard
may also apply where a complaint is dismissed for failure to exhaust administrative remedies,”
though we have at times suggested that the more deferential abuse-of-discretion standard should
govern. See id. at 558–59 (citing conflicting caselaw). We need not decide this question here
because even applying de novo review, we would affirm the district court.
A.
Reynolds first argues that the district court erred by dismissing his Rehabilitation Act
claims for failure to exhaust administrative remedies. “Timely contact with an EEO counselor is
an administrative remedy that a federal employee must invoke before he may bring a claim of
1
Reynolds’s reply brief asserts that he is appealing the district court’s denial of his Whistleblower
Protection Act claim as well. But his opening brief did not identify this claim as an issue for
appeal. Appellants “cannot raise new issues in a reply brief,” so this claim is abandoned. United
States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002) (quoting United States v. Crozier, 259 F.3d
503, 517 (6th Cir. 2001)).
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employment discrimination in federal district court” under the Rehabilitation Act. Horton v.
Potter, 369 F.3d 906, 910 (6th Cir. 2004) (citing Benford v. Frank, 943 F.2d 609, 612 (6th Cir.
1991)). A plaintiff who fails to “initiate contact” with an EEO counselor within 45 days of an
allegedly discriminatory event has failed to exhaust. See 29 C.F.R § 1614.105(a)(1).
Reynolds did not contact an EEO counselor in time. Reynolds filed his EEO complaint on
December 11, 2019, alleging that defendants rescinded his reasonable accommodations by rolling
back accommodations for his disability, denying him a promotion in 2018, and misrepresenting
his performance reviews between February 2018 and July 2019. The last act alleged to support
his first Rehabilitation Act claim thus occurred in July 2019, more than 45 days before he filed his
EEO complaint. So Reynolds failed to exhaust his first Rehabilitation Act claim. Reynolds’s
second Rehabilitation Act claim is “predicated upon the Air Force’s continued . . . denial of his
request for telework as an accommodation of his disability” from November 2019 through
December 2020. Reynolds did not present these issues anywhere in his EEO complaint, however,
so this claim is likewise unexhausted.
Reynolds claims that he exhausted administrative remedies by complaining “verbally and
in writing, to many managers, over many years” about the alleged retaliatory conduct. But the
regulations required him to complain to an EEO counselor, not his managers. See 29 C.F.R
§ 1614.105(a)(1).
Reynolds alternatively argues that even if he failed to exhaust administrative remedies,
defendants waived the “untimeliness defense.” While Reynolds is right that this defense can be
waived, it was not waived here. See Mitchell v. Chapman, 343 F.3d 811, 819–20 (6th Cir. 2003).
“[W]aiver occurs when the agency decides the complaint on the merits without addressing the
untimeliness defense.” Potter, 369 F.3d at 911. Here, the agency investigated Reynolds’s claims,
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and dismissed them for untimeliness under 29 C.F.R § 1614.107(a)(2). Thus, the agency squarely
addressed the untimeliness defense when it issued its decision. See Potter, 369 F.3d at 911.
Reynolds nonetheless argues that the agency waived the untimeliness defense by “providing
express written consent to be haled into District Court.” The agency did no such thing. He
references boilerplate language appended to the final agency decision informing employees that
they may file a civil action in a U.S. District Court within 90 days after receiving the Commission’s
final decision. That language does not waive the timely exhaustion requirement; instead, it merely
informs employees of their appeal rights after a final agency decision is issued, as required by 29
C.F.R. § 1614.110(b).
Reynolds’s other arguments fail as well. First, he contends that initiating a grievance under
the Master Labor Agreement tolls the 45-day EEO notice requirement. He cites no caselaw to
support this proposition, and since we are aware of none, this argument fails. Next, Reynolds
argues that his “[f]ailure to exhaust administrative remedies” was excusable because it would have
been futile. He cites United States v. Hunt, 459 F. Supp. 3d 932, 936 (E.D. Mich. 2020) and Bishop
v. Oakstone Academy, No. 06–CV–404, 2007 WL 641857, at *3 (S.D. Ohio Feb. 27, 2007) to
support this proposition. But these cases do not bind us, nor do they recognize a futility exception
to the Rehabilitation Act’s exhaustion requirement. See Hunt, 459 F. Supp. 3d at 936–37
(addressing the futility exception for the compassionate release of a prisoner); Bishop, 2007 WL
641857, at *3 (analyzing the futility exception for a claim under the Individuals with Disabilities
Education Act). Moreover, even if we were to recognize such an exception, Reynolds would not
qualify for it. Reynolds argues that further engagement with his managers, Frederick and Smith,
would have been futile since they did not change their behavior after Reynolds complained to
them. But Reynolds would need to show the futility of further engagement with the EEO, not his
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managers, to avail himself of any futility exception. See e.g., Wilson v. MVM, Inc., 475 F.3d 166,
176 (3d Cir. 2007) (requiring plaintiffs to make a “clear and positive showing” that exhausting
administrative remedies with the agency would be futile). Reynolds next claims that
administrative exhaustion was moot once he started working at EPA in late 2020. He does not
explain, however, how his move to EPA made it futile for him to present his claims to an EEO
counselor when those claims arose from conduct that began in August 2017. See id. Thus,
Reynolds’s futility argument also fails.
B.
Reynolds next challenges the district court’s dismissal of his FTCA claims. The district
court dismissed these claims for two independent reasons: that Reynolds had failed to exhaust
administrative remedies; and that, in any event, FTCA claims are preempted by the Rehabilitation
Act and the Civil Service Reform Act. On appeal, Reynolds challenges only the district court’s
first reason for dismissal. By not addressing the alternative, and independent, ground for
dismissing his claim, Reynolds has forfeited any challenge to dismissal of his FTCA claim. See
White Oak Prop. Dev., LLC v. Washington Twp., 606 F.3d 842, 854 (6th Cir. 2010) (holding that
the appellant forfeited “its appeal of the district court’s dismissal of its claim” when it challenged
only one ruling and ignored the district court’s alternative ruling that a second rationale
“independently required dismissal of its claim”).
C.
Finally, Reynolds challenges the district court’s denial of his motion to restore Smith and
Frederick as defendants in their personal capacities and his motion for fees and costs. The district
court denied both motions as moot. On appeal, Reynolds argues the merits of those motions but
does not challenge the district court’s holding that these motions were rendered moot by the
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dismissal of the case. His failure to contest this dispositive issue forfeits any challenge to the
district court’s rulings. See id.***
For the foregoing reasons, we AFFIRM the district court’s judgment.
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