Hogg v. Department of State

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CAREY HOGG, : : Plaintiff, : Civil Action No.: 25-1925 (RC) : v. : Re Document No.: 9 : DEPARTMENT OF STATE, et al. : : Defendants. : MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS I. INTRODUCTION Plaintiff Carey Hogg alleges that she suffers from a condition sometimes referred to as Havanna Syndrome. She says this disability and the accompanying medical care require her to work remotely and on a flexible schedule. For years, she alleges, these accommodations allowed her to perform her job at the United States State Department without incident. But, in March 2023, she charges that her employer abruptly reversed course—revoking her accommodation and taking other actions that she claims targeted her disability or were retaliatory. She now sues under the Rehabilitation Act, 29 U.S.C. § 791, for various forms of disability discrimination. Defendants the United States Department of State and Secretary of State Marco A. Rubio, in his official capacity, move to dismiss. The focus of their motion is that (1) Ms. Hogg failed to raise many of her grievances with the agency before she sued in federal court and (2) Ms. Hogg’s allegations do not state plausible discrimination claims. The Court grants Defendants’ motion only in part. It concludes that Ms. Hogg adequately raised some, but not all, her claims with the agency first. And the Court finds that Ms. Hogg has stated a plausible claim that Defendants denied her a reasonable accommodation. But the Court also finds that Ms. Hogg has failed to state a claim for her other discrimination theories, retaliation and disparate treatment. II. BACKGROUND A. Factual Background The Court draws the following factual background from the allegations in the complaint, which the Court must assume are true for purposes of this motion. See Wright v. Eugene & Agnes E. Meyer Found., 68 F.4th 612, 617 (D.C. Cir. 2023). Ms. Hogg worked as a Foreign Affairs Officer within the United States Department of State. Compl. ¶ 2. She alleges she served there for ten years, making her “the longest continuously serving employee” in her office. Id. During that tenure, she “was promoted three times, received two exemplary annual performance ratings, and won awards for her continued excellent performance each year.” Id. Although she would not be diagnosed for many years, in August 2016 Ms. Hogg alleges she began suffering from an “Anomalous Health Incident,” which some have referred to as “Havana Syndrome” or even an “immaculate concussion.” Id. ¶ 3. She alleges that, according to a 2020 government report, the condition is “most likely due to pulse[d] microwave radio frequency radiation,” and it “has plagued hundreds of American officials stationed abroad in China” and “Cuba” as well as officers stationed domestically. Id. Ms. Hogg sustained the injury while working in the District of Columbia. Id. It caused her to experience “headaches, sleeplessness, lightheadedness, nosebleeds, and memory loss.” Id. Despite her injury, Ms. Hogg “continued to work full-time, bringing her laptop to countless emergency rooms and hospital stays to ensure her continued exemplary job performance.” Id. ¶ 4. For her efforts, she “received her first promotion” along the General Schedule pay scale. Id. She alleges that “[a]s a result” of her performance, in January 2020 2 “senior leadership established reasonable accommodations for [her] that allowed her to telework ‘any day, and at any time.’” Id. In May 2021, Ms. Hogg received her diagnosis for an Anomalous Health Incident. Id. ¶ 5. She “immediately reported this diagnosis to a supervisor” and “requested accommodation for her disability from the State Department’s Disability and Reasonable Accommodation Division.” Id. She was then promoted again. Id. Around this time, “senior leadership established a Remote Work Agreement . . . that allowed Ms. Hogg to continue working full-time while receiving medical care at the Mayo Clinic in Arizona.” Id. Under this accommodation, “[s]he continued to receive exemplary annual performance ratings in both the years 2021 and 2022.” Id. Ms. Hogg alleges, however, that this arrangement began to deteriorate in March 2023. See id. On the first of the month, Orna Blum (presumably one of Ms. Hogg’s supervisors) alongside a State Department “Resources Division Chief . . . initiated a re-evaluation of Ms. Hogg’s current reasonable accommodations.” Id. ¶ 6. After this point, Ms. Hogg alleges that her employer took fourteen adverse employment actions against her related to her disability. See id. ¶¶ 29–45. The first four adverse-employment actions concern events related to the contractors Ms. Hogg supervised. See id. ¶¶ 33–35. The day after Ms. Blum initiated the reevaluation, Ms. Hogg alleges that “Ms. Blum informed Ms. Hogg that Ms. Hogg would no longer manage her principal contractor.” Id. ¶ 33. This was the first alleged adverse employment action. Id. The second alleged adverse employment action followed quickly on its heels. Ms. Hogg alleges she was “specifically advised that she could no longer communicate with” this contractor. Id. ¶¶ 8, 33. After that, two other contractors left or were terminated, and their duties were assigned 3 to Ms. Hogg, which she alleges constituted the third and fourth adverse actions (one for each contractor). Id. ¶¶ 34–35. The next month, on April 3, Ms. Hogg filed a complaint with the Equal Employment Opportunity Commission. Id. ¶ 46. A week later, Ms. Hogg suffered what she characterizes as the fifth adverse employment action. Ms. Blum emailed Ms. Hogg about “Work Commitment Ideas,” which appear to have been a set of performance objectives. Id. ¶¶ 9, 36. Ms. Hogg alleges that “[t]his was the first time that [she] had not been involved in the process” of setting her performance goals “as it was supposed to be interactive.” Id. ¶ 9. And Ms. Blum repeatedly canceled meetings with Ms. Hogg where Ms. Hogg hoped to discuss the plan. Id. These cancelations, as Ms. Hogg sees them, constitute the sixth adverse employment action. Id. ¶ 37. “This conduct occurred up and until Ms. Hogg filed an informal Equal Employment Opportunity . . . complaint.” Id. ¶ 9. That complaint “requested that [Ms. Hogg] be allowed to maintain the reasonable accommodation that she had due to her condition.” Id. ¶ 10. 1 On May 9, 2023, Deputy Coordinator Leah Bray advised Ms. Hogg that after her remote- work agreement expired at the end of the month, Ms. Hogg “would have to return to Washington, D.C. or go on unpaid Family Medical Leave . . . or Leave Without Pay.” Id. ¶¶ 10, 12. At the time, “Ms. Hogg was receiving intravenous immunoglobin . . . treatment every two weeks,” which “her supervisors were aware” of. Id. ¶ 38. Her employer also “no longer 1 Presumably, this informal complaint, filed at some point after April 10, 2023, was different from the complaint Ms. Hogg filed on April 3, 2023. Compare id. ¶ 9, with id. ¶ 46. Defendants point out that Ms. Hogg did not actually file a complaint on April 3, 2023, but instead merely initiated an informal counseling process. See Defs.’ Mot. at 7 n.3. For present purposes, however, the Court treats Ms. Hogg’s allegation as true—although it is not necessarily required to do so. See Dreamland Baby Co. v. Consumer Prod. Safety Comm’n, No. CV 24- 3277 (RC), 2025 WL 2758476, at *6 (D.D.C. Sept. 26, 2025) (“Courts need not accept as true the complaint’s factual allegations insofar as they contradict exhibits to the complaint or matters subject to judicial notice.” (cleaned up)). 4 approved” her flexible work schedule. Id. ¶ 39. The end of her remote-work agreement and her flexible work schedule mark the seventh and eighth alleged adverse employment actions. Id. ¶¶ 38–39. Although Ms. Hogg’s remote-work agreement “was set to expire on May 31, 2023,” the State Department “offered to extend it to July 31, 2023, and Ms. Hogg accepted.” Id. ¶ 40. But the State Department understood that Ms. Hogg had “refused to sign or acknowledge the extension” and therefore it advised her that she “was no longer on” a remote-work agreement. Id. ¶ 12. This, Ms. Hogg alleges, was “patently false.” Id. Ms. Hogg had “draft[ed] the acceptance herself” and, as part of the acceptance, been “required to give up her initial accommodation of a flexible work schedule.” Id. The State Department ultimately relented and extended Ms. Hogg’s remote-work agreement to July 31, 2023. Id. ¶ 41. Unassuaged, Ms. Hogg labels this initial denial of an extension as adverse employment action number nine. Id. ¶ 40. And she denounces the subsequent grant of her requested extension as adverse employment action number ten because it was conditioned on her “giv[ing] up her initial accommodation of a flexible work schedule”—which, as noted above, she also alleged was the case for the initial extension offer. Id. ¶¶ 40–41. Ms. Hogg then asked for a further extension of her remote-work agreement beyond July 31, which Ms. Bray denied—the eleventh adverse employment action. Id. ¶ 42. The State Department then presented Ms. Hogg with a different option. Management offered Ms. Hogg “reassignment” to “a ‘potential detail opportunity’ with a different department” that would “allow Ms. Hogg to continue to work from home.” Id. ¶ 43. But where the State Department saw an olive branch, Ms. Hogg saw a twelfth adverse employment action. 5 See id. She alleges the detail would have “chang[ed] [her] job duties entirely in an effort to set her up for failure to give Defendants [ ] a feigned reason to fire [her] and have it look like it was not due to her disability.” Id. Ms. Hogg also alleges that her accumulated leave under the Family Medical Leave Act ended on January 5, 2024. Id. ¶ 44. But management treated her leave “as ‘unauthorized and unscheduled absence from work’ and placed her into AWOL status.” Id. From this, Ms. Hogg arrives at adverse employment act number thirteen. Id. At some point after this, the State Department advised Ms. Hogg that her department’s “operational posture and work demands had returned to pre-COVID norms and necessitated her return to in-office work in Washington, D.C.” Id. ¶ 45. Management informed her “that a remote work agreement was no longer a viable option for her because it fell outside the scope of her position record, classified settings, as well as outside the jurisdiction of her official domestic duty station.” Id. Ms. Hogg alleges that this new position “was quite false.” Id. Her “position description was not created and drafted until March 2020” and stated that she could “remotely start in March 2020 and allowed her to build a new division and lead a team to do the work of a portfolio that she designed.” Id. ¶ 45(a). Her “official domestic duty station” had been changed “to Phoenix in February 2022 due to her . . . medical care located at the Mayo Clinic in Arizona and because Defendants would not provide . . . care and treatment anywhere else.” Id. ¶ 45(c). Nor did her position require a “Top Secret security clearance” or “any work to be done in a classified setting.” Id. ¶ 45(b). Even if classified materials were required, “there were three ‘Classified Drop’ . . . offices in the Phoenix area which had agreed to allow Ms. Hogg to use their stations whenever needed.” Id. When Ms. Hogg told her management about these drop 6 locations she “was advised to ‘cease and desist’ her efforts to utilize” them due to “lack of funding.” Id. Ms. Hogg alleges “no additional funding was necessary.” Id. Ms. Hogg further alleges that her “duties and responsibilities were able to be performed remotely and done well.” Id. ¶ 45(c). These allegedly pretextual reasons for requiring Ms. Hogg to return to work in Washington, D.C. denote the fourteenth alleged adverse employment action. Id. ¶ 45. Finally, Ms. Hogg alleges that she was terminated. See id. ¶ 70. She does not allege that this was an adverse job action. The complaint also does not indicate when this happened or any circumstances surrounding the termination other than to say that she was “fired solely because of her disability, which has undercut her efforts to advance in her career.” Id. She further alleges, upon information and belief, that “similarly situated employees within the State Department who are not disabled have not been subject to this type of treatment.” Id. B. Administrative Proceedings As previously noted, Ms. Hogg filed an administrative complaint regarding her employment conditions on April 3, 2023. See Compl. ¶ 46. The Court bases the description below on the allegations in Ms. Hogg’s federal complaint as well as Ms. Hogg’s administrative complaints and the agency’s final decision, which the parties have attached to their briefs. See Pl.’s Opp’n, Decl. of Carey Hogg, Ex. A (“Final Decision”), ECF No. 13-2; see also Defs.’ Mot. to Dismiss Pl.’s Compl. (“Defs.’ Mot.”), Exs. A–D, ECF No. 9. The Court considers these documents that fall outside the four-corners of Ms. Hogg’s complaint at this stage for the limited purpose of evaluating administrative exhaustion. See Vasser v. McDonald, 228 F. Supp. 3d 1, 9– 11 (D.D.C. 2016). The Court does not consider them for purposes of the parties’ other arguments. Nor does the Court consider the unrelated statements in Ms. Hogg’s declaration that 7 she attached to her opposition brief, which are not properly before the Court at this stage. See Lamb v. Millennium Challenge Corp., 573 F. Supp. 3d 346, 350 (D.D.C. 2021). After Ms. Hogg filed her formal administrative complaint, the State Department sent Ms. Hogg a Notice of Acceptance Letter with a list of Amended and Accepted Allegations. See Defs.’ Mot., Ex. D (“Notice of Acceptance Letter”) at 1, ECF No. 9-4. The letter acknowledged Ms. Hogg’s claims regarding (1) the loss of “contractor oversight”; (2) the expiration of her “remote work arrangement” with “no effective accommodation” implemented to replace it; (3) “a negative Rater Progress Review Summary” on July 21, 2023; and (4) being “marked as AWOL” for a “prior pay period.” Id. The letter also acknowledged that Ms. Hogg alleged she had “been subject to hostile work environment harassment, characterized by but not limited to the events listed above and” the reevaluation of her accommodation and the failure to establish performance goals. Id. at 2. 2 The agency denied all of Ms. Hogg’s claims on March 18, 2025. See Final Decision at 1, 6. Starting with Ms. Hogg’s reasonable-accommodation claim, the agency found that she could not “perform the essential functions of her position” with “the accommodation of [her] choice”—a remote-work agreement. Id. at 37. 3 The agency credited Ms. Blum’s testimony that while Ms. Hogg had been on a remote-work agreement, she had been unable to perform many important parts of her job, including participating in “a bulk” of the agency’s new projects for 2023, researching and analyzing with “classified systems,” accessing “in-person sensitive 2 This list of allegations appears to be a slightly expanded version of what Ms. Hogg initially alleged in her administrative complaint. Defs.’ Mot., Ex. C at 4, ECF No. 9-3 3 The agency also denied Ms. Hogg’s claim regarding the revocation of her prior accommodation, finding that before 2023 Ms. Hogg had not actually requested an accommodation through the proper channels and instead merely received “permission to maintain a flexible work schedule and work remotely from Arizona” outside of a disability- related accommodation. Id. at 35. 8 meetings” and “discussions,” and attending “classified interagency meetings.” Id. Although Ms. Hogg “claimed that her position [did] not involve working with classified information, this statement [did] not account for the reorganization of the [department] and [Ms. Hogg’s] updated work requirements.” Id. at 36. The agency also reasoned that, even though Ms. Hogg could not perform her essential job functions with her preferred accommodation, the agency offered her other accommodations that would accommodate her while enabling her to perform all essential job functions. See id. at 37. For example, the State Department offered Ms. Hogg “a variable schedule whereby [she] could complete eight hours of work within a twelve-hour period with only a portion of that time scheduled as ‘core hours’” and “offered non-remote telework for portions of the work week, as well as workplace flexibility to accommodate [Ms. Hogg’s] many medical appointments.” Id. The State Department also “agree[d] to [Ms. Hogg’s] request for a year-long detail assignment in another bureau that allowed remote work[,] which [Ms. Hogg] later rejected.” Id. at 38. From the agency’s perspective, Ms. Hogg “continued to request [a remote-work agreement] not to remove a barrier to the workplace but rather to improve her financial situation.” Id. The agency cited statements from Ms. Hogg indicating that the reason she could not return to Washington, D.C., derived from the financial burden she incurred from her medical costs. See id. But when Ms. Hogg eventually received “a ‘Secretarial Designation’ authorizing her to receive cost free medical care at Walter Reed’s program,” a healthcare program in “the National Capital Area,” she still declined to relocate. Id. The agency addressed Ms. Hogg’s disparate-treatment and retaliation claims together and concluded that the State Department had taken the alleged adverse-job actions for legitimate, non-discriminatory reasons. See id. at 39. The agency concluded that 9  [t]he removal of oversight of [Ms. Hogg’s principal contractor] was based on [Ms. Hogg’s] inability to manage her properly; the ending of [Ms. Hogg’s] remote work agreement was due to changes in the work of the office to include the ability to work on [classified networks] thus requiring [Ms. Hogg] to return to D.C.; the progress review was well-supported; and the AWOL charge was the result of [Ms. Hogg’s] failure to timely file appropriate documents requesting [family medical leave]. Id. Finally, the agency rejected Ms. Hogg’s hostile-work-environment claim. According to the agency, Ms. Hogg had “related that in addition to the removal of her reasonable accommodation and the unfair mid-year review, numerous other actions already described in her testimony taken by Ms. Blum and Ms. Bray constituted harassment as well as being discriminatory.” Id. at 40. But the agency found that “[a] review of the record showed no evidence” of “unwelcome verbal or physical conduct,” and Ms. Hogg had “failed to show that her disability or protected EEO activity were the motivating factors for management’s actions.” Id. at 41. It concluded that she had “not allege[d] sufficient facts to show that her workplace was permeated with hostile or abusive verbal or physical conduct[ ] based on her membership in a protected class.” Id. at 42. Ms. Hogg now sues Defendants in federal court. She brings three counts: (1) failure to accommodate her disability, (2) disparate treatment based on her disability, and (3) retaliation for raising claims regarding her disability. See Compl. ¶¶ 51–72. III. LEGAL STANDARD Defendants’ motion raises two types of issues with different legal standards. The Court must determine first whether Ms. Hogg has administratively exhausted all her claims such that the Court may exercise subject-matter jurisdiction over them and second whether Ms. Hogg states a claim for any of those claims over which the Court has jurisdiction. 10  In cases where administrative exhaustion implicates the Court’s subject-matter jurisdiction, “plaintiff bears the burden of alleging facts sufficient to establish that he or she exhausted administrative remedies and bears the ultimate burden of proof.” Williams v. Brennan, 320 F. Supp. 3d 122, 127 (D.D.C. 2018), aff’d, No. 18-5256, 2019 WL 669716 (D.C. Cir. Feb. 12, 2019). By contrast, “Federal Rule 12(b)(6) places th[e] burden on the moving party” to show that the complaint fails to state a claim. Cohen v. Bd. of Trs. of the Univ. of the D.C., 819 F.3d 476, 481 (D.C. Cir. 2016). “To survive a 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That means the plaintiff must “plead[ ] factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. IV. ANALYSIS The Court starts with Defendants’ argument that it lacks subject-matter jurisdiction over certain allegations in the complaint. The Court agrees, but only in part. The Court then addresses each of Ms. Hogg’s three counts in turn. It concludes that she states a claim under a failure-to-accommodate theory (Count I) but fails to state a retaliation or disparate-treatment claim (Counts II–III). Next, the Court addresses Defendants’ argument that the Rehabilitation Act does not permit punitive and emotional-distress damages, and the Court dismisses the punitive damages but permits the claim for emotional-distress damages. Finally, the Court 11 considers Ms. Hogg’s requests for leave to amend and jurisdictional discovery—partially granting leave to amend and denying jurisdictional discovery. 4 A. Administrative Exhaustion A federal employee (as distinguished from non-federal employees) may sue under the Rehabilitation Act only if they are “‘aggrieved by the final disposition’ of their administrative ‘complaint.’” Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006) (quoting 29 U.S.C. § 794a(a)(1)); see Pappas v. District of Columbia, 513 F. Supp. 3d 64, 83 (D.D.C. 2021) (distinguishing claims brought by non-federal employees). That means the employee must first file an administrative complaint and give their employing agency an opportunity to consider it before running to federal court—a process known as administrative exhaustion. See Doak v. Johnson, 798 F.3d 1096, 1099 (D.C. Cir. 2015). This statutory exhaustion requirement acts as a condition on the federal government’s waiver of sovereign immunity for Rehabilitation Act claims. See Barkley v. U.S. Marshals Serv. ex rel. Hylton, 766 F.3d 25, 34 (D.C. Cir. 2014). And without a Congressional waiver of federal sovereign immunity, this Court lacks jurisdiction over a case. United States v. Miller, 604 U.S. 518, 527 (2025) (“Sovereign immunity is jurisdictional in nature and deprives courts of the power to hear suits against the United States absent Congress’s express consent.” (cleaned up)). Putting this all together, this Court only has jurisdiction over claims that have been properly exhausted through the administrative process. 5 4 Because the Court concludes that Ms. Hogg fails to state a retaliation claim it need not address at this time Defendants’ argument that this claim separately violates Fed. R. Civ. P. 8. See Defs.’ Mot. at 25. 5 That is not to say that all exhaustion requirements in this context are jurisdictional. Beyond the statutory requirement discussed above, there are also regulatory requirements for how an employee must proceed through the administrative process. See, e.g., 29 C.F.R. § 1614.105(a) (requiring an employee to “consult a Counselor prior to filing a complaint in order to try to informally resolve the matter”). Defendants imply that these requirements are also jurisdictional, see Defs.’ Mot. at 13, but the D.C. Circuit has rejected that view and suggested 12  Defendants argue that Ms. Hogg failed to exhaust many of her claims because she failed to raise them in her administrative complaint. Of particular note, they argue that Ms. Hogg never exhausted any of her claims after November 17, 2023, because she “identified no issue in her” administrative complaint after that date. Defs.’ Mot. at 14. That would exclude Ms. Hogg’s eventual termination. Ms. Hogg acknowledges that her administrative complaint does not include all the protected activity and retaliation she alleges now. But she insists that she has exhausted all claims because even those not included in her administrative complaint were (1) sufficiently related to her claims raised in her administrative complaint and, (2) for a subset of her claims, actually adjudicated by the agency. Pl.’s Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”) at 11, 19–20, ECF No. 13. The Court agrees with Ms. Hogg second argument. Raising a related claim does not satisfy the exhaustion requirement. But if the agency adjudicates a claim, then that claim is exhausted regardless of whether Ms. Hogg raised it in her administrative complaint. 1. Exhaustion Requires More than Merely Raising “Related” Claims Starting with Ms. Hogg’s first argument, she cannot exhaust a claim simply by raising a related claim during the administrative proceedings. She must exhaust her “administrative remedies with respect to each discrete allegedly discriminatory or retaliatory act.” Prescott- Harris v. Fanning, No. CV 15-1716 (RC), 2016 WL 7223276, at *3 (D.D.C. Dec. 12, 2016) (quoting Wada v. Tomlinson, 517 F. Supp. 2d 148, 183 (D.D.C. 2007), aff’d, 296 F. App’x 77 (D.C. Cir. 2008)). That applies even to the extent a discriminatory or retaliatory act was simply that only the statutory requirement holds jurisdictional status. See Doak v. Johnson, 798 F.3d 1096, 1104 (D.C. Cir. 2015). Although the Court must address jurisdictional arguments first, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998), the Court declines to address any non-jurisdictional exhaustion arguments because doing so is unnecessary to resolve this motion. 13 the culmination of previous conduct. “[C]ourts in this Circuit have specifically rejected attempts . . . to piggy-back termination claims that are the ‘culmination’ of [ ] properly exhausted hostile work environment or discrimination claims.” Terveer v. Billington, 34 F. Supp. 3d 100, 113 (D.D.C. 2014) (collecting cases). Ms. Hogg’s contrary argument relies on outdated precedent. She invokes on a line of cases deriving from Park v. Howard University, 71 F.3d 904 (D.C. Cir. 1995). See Pl.’s Opp’n at 11–12. In that case, the D.C. Circuit reasoned that a plaintiff could raise any claims “like or reasonably related to the allegations of the [administrative complaint] and growing out of such allegations.” Park, 71 F.3d at 907 (quoting Cheek v. W. & S. Life Ins., 31 F.3d 497, 500 (7th Cir. 1994)). Park and its progeny, however, have not stood the test of time. In 2002, the Supreme Court held that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Court specifically rejected a continuing-violation theory that would allow plaintiffs to raise related claims with respect to such discrete acts, like “termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 114. 6 Although Morgan involved a timeliness issue under the statute of limitations, most courts in this district have applied its logic to exhaustion requirements as well, concluding that Park is out of step with Morgan. See Mount v. Johnson, 36 F. Supp. 3d 74, 84–86 (D.D.C. 2014) (Jackson, J.) (canvassing cases); see, e.g., 6 Ms. Hogg insists that Morgan supports her position because it carved out an exception for hostile-work-environment claims, which it recognized “are different in kind from discrete acts” because “[t]heir very nature involves repeated conduct.” Id. at 115; see Pl.’s Opp’n at 19. The problem is that, although Ms. Hogg raised a hostile-work-environment claim during the administrative proceedings, she does not raise one here. Because she raises only discrete claims, she cannot proceed on a continuing-violation theory. 14 Hargrove v. AARP, 205 F. Supp. 3d 96, 119 (D.D.C. 2016) (“The Court is convinced that the reasonably related rule no longer reflects the state of the law.” (cleaned up)). And although Morgan arose in the context of Title VII (like Park), many courts, including this one, have extended its logic to exhaustion under the Rehabilitation Act. See, e.g., Prescott-Harris, 2016 WL 7223276, at *3. 7 Ms. Hogg tries to get around this by casting her argument in terms of constitutional due process. She argues that because she was not informed about her termination until three months after the fact, she was deprived of the ability to exhaust any claims regarding her termination. See Pl.’s Opp’n at 16. She therefore appears to bring an as-applied challenge to the constitutionality of the statutory exhaustion requirement. This argument suffers from numerous flaws, a few of which the Court discusses below. First, Ms. Hogg does not actually develop any constitutional argument. She simply states that the Fifth Amendment protects liberty and property. See id. She cites no precedent and makes no argument as to why the exhaustion requirement, even if it did preclude her from bringing a wrongful-discharge claim under the Rehabilitation Act, violates that guarantee. Nor does she explain why she could not simply have filed a new administrative complaint once she learned of her termination or why being forced to file a second administrative complaint would violate her due process rights. See Al-Saffy v. Vilsack, 827 F.3d 85, 98 (D.C. Cir. 2016) (“If an employee did not at the time of the alleged discriminatory action know or have reason to know that an employment decision was discriminatory in nature, the time limits for filing an administrative 7 The D.C. Circuit has repeatedly declined to address the vitality of its pre-Morgan precedent. See Webster v. Del Toro, 49 F.4th 562, 568 (D.C. Cir. 2022) (“We have twice reserved the question whether Park survives Morgan. We do the same here . . . .” (citation omitted)). 15 complaint may be tolled.” (cleaned up)) (involving Title VII); Doak, 798 F.3d at 1104 (explaining the same is true for the Rehabilitation Act). The Court will not entertain this constitutional challenge to a statute when Ms. Hogg has not even explained her argument. See Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019) (“Mentioning an argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones is tantamount to failing to raise it.” (cleaned up)). Second, in terms of factual support, Ms. Hogg cites to only statements in her declaration, as opposed to allegations in the complaint. Her declaration, which was neither attached nor incorporated by reference into the complaint, is not properly before the Court and therefore those statements cannot be considered. See Haymon v. District of Columbia, 610 F. Supp. 3d 101, 108 (D.D.C. 2022). Third, the only potentially relevant case Ms. Hogg cites has nothing to do with due process. She focuses on Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981). Pl.’s Opp’n at 16–17. That case, however, never mentions due process. Instead, it resembles the D.C. Circuit’s decision in Park. See Gupta, 654 F.2d at 414 (holding that exhaustion is unnecessary for retaliation claims “growing out of an earlier charge”). And like Park, the Fifth Circuit itself has called that precedent into question, as have judges in this District. See Simmons-Myers v. Caesars Ent. Corp., 515 F. App’x 269, 274 n.1 (5th Cir. 2013) (per curiam) (unpublished) (“We note that Gupta may no longer be applicable after the Supreme Court’s decision in Morgan.” (citation omitted)); see, e.g., Adams v. Mineta, No. CIV.A.04-856 (RBW), 2006 WL 367895, at *4 (D.D.C. Feb. 16, 2006) (declining to follow Gupta post-Morgan). 16  2. Claims Actually Adjudicated by the Agency Are Exhausted Although the Court rejects Ms. Hogg’s principal argument, her fallback position finds more purchase. She argues that the agency’s final decision addressed many of the claims that Defendants argue she failed to exhaust, so at least those claims are exhausted. Pl.’s Opp’n at 19– 20. The Court agrees (at least for purposes of subject-matter jurisdiction) because the statutory exhaustion requirement pays attention not only to the employee’s complaint but also to the agency’s decision. An employee exhausts any claims for which she is “aggrieved by the final disposition of [the administrative] complaint.” 29 U.S.C. § 794a(a)(1) (emphasis added). To the extent the final disposition, in this case the agency’s final decision, considered and rejected claims not properly raised in the administrative complaint, Ms. Hogg is still aggrieved by the on-the-merits rejection of those unraised claims. As the D.C. Circuit has explained, a court lacks jurisdiction over a claim due to exhaustion only if the plaintiff “fail[s] to file an administrative complaint or to obtain any administrative decision.” Doak, 798 F.3d at 1103 (emphasis added). The Court interprets this test as disjunctive, so Ms. Hogg may satisfy it if she either raised the claim in her administrative complaint or if the agency disposed of it on the merits. This conclusion aligns with how courts treat exhaustion in other contexts. When an “agency in fact considers the issue on the merits, [the] general exhaustion requirement can be satisfied even if the party did not properly raise it.” Kennedy for President Comm. v. Fed. Election Comm’n, 734 F.2d 1558, 1560 n.2 (D.C. Cir. 1984); see Portillo Flores v. Garland, 3 F.4th 615, 633 (4th Cir. 2021) (en banc) (“A majority of circuits have found a claim exhausted ‘whenever the agency has elected to address in sufficient detail the merits of a particular issue,’ 17 even if the agency raised it sua sponte, because ‘by addressing an issue on the merits, an agency is expressing its judgment as to what it considers to be a sufficiently developed issue.’” (quotation omitted)); Watson v. Henderson, 222 F.3d 320, 322 (7th Cir. 2000) (“That is to say, an issue may be deemed exhausted if either presented to the EEOC in a statement or actually addressed by the agency.”). That is because, if the agency considers the claims (regardless of whether they were properly raised), “the relevant policy concerns underlying the exhaustion requirement—that an administrative agency should have a full opportunity to resolve a controversy or correct its own errors before judicial intervention—have been satisfied.” Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc) (quotation omitted). Defendants argue that even claims which the agency addressed are not exhausted because the D.C. Circuit has held that it does not matter whether an agency is on notice of a claim if the employee did not include the claim in the administrative complaint. Reply in Supp. of Defs.’ Mot. to Dismiss (“Reply”) at 7–8, ECF No. 16. It is true that the D.C. Circuit has held as much, but that does not take Defendants where they want to go. In Webster v. Del Toro, 49 F.4th 562 (D.C. Cir. 2022), the D.C. Circuit rejected the argument that a plaintiff could exhaust an unraised claim simply because “the facts underlying [the] claim became apparent during the [agency’s] investigation.” Id. at 568; see also Davis v. FBI, No. 25-5061, 2025 WL 2982518, at *1 (D.C. Cir. Oct. 16, 2025) (per curiam) (unpublished) (“Nor does appellant’s allegation that the Federal Bureau of Investigation was on notice that she had previously sought a religious accommodation suffice to satisfy the exhaustion requirement.”). 8 8 The Court is thus unpersuaded by Ms. Hogg’s argument that she exhausted her claims merely because the agency was on notice of them. See Pl.’s Opp’n at 12. 18  Being on notice of a claim, however, is not the same as actually deciding a claim. While an agency may reasonably decide not to address a claim that an employee fails to properly raise, as appears to have been the case in Webster, it may also elect to address the claim and save itself the trouble of dealing with another administrative complaint down the line raising that claim, as it seems to have done here. Requiring Ms. Hogg to refile her administrative complaint notwithstanding the agency’s decision to address these claims would frustrate that decision. It would require her to raise a claim the agency had already denied on the merits. To be sure, the court in Webster explained that allowing mere notice to exhaust an improperly presented claim would “invert the basic rule that the employee must identify for the agency the claims that she wishes to pursue.” Webster, 49 F.4th at 568. But, as the cases discussed above illustrate, that basic rule does not apply when the decisionmaker reaches out and decides an issue not properly presented by a party. Courts routinely hold that a party does not forfeit an issue that the court below actually decided. See, e.g., Tanner-Brown v. Haaland, 105 F.4th 437, 444 (D.C. Cir. 2024) (“[Forfeiture] concerns are eliminated if the district court has in fact considered the new claim.”); see also, e.g., United States v. Williams, 504 U.S. 36, 41 (1992) (explaining in the context of a writ of certiorari that the Court may “review [ ] an issue not pressed [by a party] so long as it has been passed upon” by the lower court