Taylor v. Winter ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY D. TAYLOR, :
:
Plaintiff, :
:
v. : Civil Action No. 08-0984 (JR)
:
RAYMOND E. MABUS, JR., Secretary :
of the Navy, :
:
Defendant. :
MEMORANDUM
Timothy D. Taylor, plaintiff pro se, alleges that his
former employer, the Department of the Navy,1 discriminated
against him on the basis of race, gender, and disability, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and Section 501 of the Rehabilitation Act of
1973, 29 U.S.C. § 791 et seq., and that the Navy retaliated
against him for filing a complaint with his Equal Employment
Opportunity office. The Navy moves to dismiss, or, in the
alternative, for summary judgment. Because Mr. Taylor failed to
exhaust his administrative remedies, the motion to dismiss will
be granted with respect to his Rehabilitation Act claims. The
motion for summary judgment will be granted with respect to his
Title VII claims.
Mr. Taylor is a 47-year-old African-American male, who
worked in the Navy’s Human Resources Office for more than 23
1
Pursuant to Fed.R.Civ.P. 25(d), Raymond E. Mabus is
substituted as defendant in his official capacity.
years. In March 2004 and December 2005, he sustained two on-the-
job back injuries that required surgery in January 2006 and
prevented him from working during a five-month rehabilitation
period. While he was on leave, Mr. Taylor applied and
interviewed for four open positions within his organization, but
the Navy did not select him for any of them. Mr. Taylor
subsequently contacted an EEO counselor and alleged that his non-
selection was because of discrimination based on race, gender,
and disability.
In July 2006, Mr. Taylor re-injured his back at work
and was restricted from working until February 2007. When he
returned to work, the Navy terminated him for failure to follow
proper leave request procedures and for absence from work without
leave. Mr. Taylor appealed the termination to the Merit Systems
Protection Board on March 8, 2007.
“Before filing a Title VII suit, a federal employee
must timely pursue administrative remedies, following the
requirements set forth in 29 C.F.R. § 1614.” Bowden v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997).2 To exhaust his
administrative remedies, a plaintiff must contact an EEO
counselor within 45 days of the alleged discrimination in an
effort to resolve the situation informally. 29 C.F.R.
§ 1614.105(a)(1). The 45-day time limit will be extended “when
2
The Rehabilitation Act also requires exhaustion. See
Bowden v. Clough, 658 F.Supp.2d 61, 71 n. 3 (D.D.C. 2009).
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the individual shows . . . that he or she did not know and
reasonably should not have known that the discriminatory matter
or personnel action occurred.” Hines, 594 F. Supp. 2d at 22.
If the plaintiff is unable to resolve the issue through
informal counseling, then he or she has 15 days from receipt of a
Notice of Right to File Formal Complaint, “subject to application
of equitable doctrines such as waiver, estoppel, and tolling,”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002),
to file such a complaint. Once the agency issues an adverse
final decision, or when 180 days have elapsed without a decision,
the plaintiff may file a civil action. 42 U.S.C. § 2000e-16(c).
Mr. Taylor’s claim can withstand the Navy’s dispositive
motion only “if he timely filed his EEO complaint and exhausted
administrative remedies . . . or if the circumstances surrounding
[the alleged discrimination] warrant equitable tolling.”
Hairston v. Tapella, 2009 WL 3379008, *4 (D.D.C. October 21,
2009).
Failure to exhaust administrative remedies compels
dismissal, but courts in this District differ on whether the
defect is jurisdictional. See, e.g., Marcelus v. Corrections
Corp. of America/Correctional Treatment Facility, 540 F. Supp. 2d
231, 234 n. 4 (D.D.C. 2008). Because I do not regard exhaustion
as a jurisdictional prerequisite, I must consider the Navy’s
motion with respect to Mr. Taylor’s Title VII claims under Rule
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12(b)(6), rather than Rule 12(b)(1). See, Hodge v. United
Airlines, 2009 WL 3416202, *1 (D.D.C. October 26, 2009) (citing
Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir.
2004)). Moreover, because both parties have filed materials
outside the pleadings that are relevant to the exhaustion issue,
Rule 12(b)(6) requires that I handle the Navy’s motion with
respect to the Title VII claims as one for summary judgment.3
(The Navy’s motion to dismiss the Rehabilitation Act claims will
be considered under Rule 12(b)(1) because that statute explicitly
states that exhaustion is jurisdictional. Spinelli v. Goss, 446
F.3d 159, 162 (D.C. Cir. 2006) (citing 29 U.S.C. § 794a(a)(1)).)
1. Non-Selection
The basis for Mr. Taylor’s initial discrimination claim
was the Navy’s decision not to hire him for four positions: Naval
Installations Command (“CNIC”)/Naval District Washington(“NDW”)
Site Manager; National Naval Medical Center (“NNMC”)/Bethesda
Satellite Manager; Naval Facilities and Engineering Command
(“NAVFAC”) Site Manager (collectively, “Satellite Manager
3
When a motion to dismiss is converted to a motion for
summary judgment, the court is required to give all parties “a
reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, both
parties submitted exhibits and affidavits on the exhaustion
issue, and the Navy fashioned its motion to dismiss as one for
summary judgment in the alternative. Therefore, both parties
have been afforded adequate opportunity to present all the
relevant materials to the Court.
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positions”); and Director for the HRO-W Labor and Employee
Relations (“LR/ER”).4
Mr. Taylor’s non-selection claims with respect to the
three Satellite Manager positions fail because he did not comply
with the required time limits, thereby failing to exhaust his
administrative remedies. He was notified of his non-selection
for the three Satellite Manager positions on February 21,
2006,[Dkt. # 6, Def. Ex. 14, Ex. F], but he waited 56 days - 11
days beyond the deadline - before contacting the EEO counselor.
His EEO counselor sent him a Notice of Right to File a Formal
Complaint on September 18, 2006, [Dkt. # 6, Def. Ex. 24]. The
notice advised him that he had 15 calendar days to file his
formal complaint, but he did not do so until June 12, 2007, [Dkt.
# 6, Def. Ex. 40], some 252 days late.
With respect to Mr. Taylor’s non-selection claim for
the Director for the HRO-W Labor and Employee Relations position,
Mr. Taylor did make timely contact with the EEO counselor, but he
did not comply with the deadline for filing a formal complaint.
Mr. Taylor’s response is to deny that he received
either the February 21, 2006 email notifying him of his non-
4
In Mr. Taylor’s Opposition, he alleges discrimination
because of his non-selection for six, rather than four,
positions. The two additional positions are Satellite manager
for the Human Resources Office, HRO-W and Satellite Manager for
the HRO-W Commander. Mr. Taylor’s Complaint only references the
four positions listed above. Therefore, I only address the non-
selection for those positions.
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selection for the three Satellite Manager positions or the
September 18, 2006 Notice of Right to File Formal Complaint.
[Dkt. # 10, Pl. Ex. 1]. This denial is contradicted by the
Navy’s dated documentation. [Dkt. # 6, Def. Ex. 14, Ex. F; Def.
Exs. 24, 25]. Mr. Taylor offers no particularized details to
support his version of the facts – no evidence that he ever
inquired about the positions or about the status of the EEO
investigation, no recitation of actions he took, other than
extremely belated attempts to reinitiate contact with his EEO
counselor in June 2007 after his MSPB claim was dismissed. He
has not established his entitlement to equitable tolling. Conteh
v. Kandarian, 2002 WL 1635368, * 1 (D.C. Cir. July 23, 2002)
(affirming dismissal of employment discrimination claim for
failure to exhaust administrative remedies because plaintiff’s
contention that he did not receive notice of non-selection did
not meet standard set forth in 29 C.F.R. § 1614.105(a)(2)).
2. Removal
Mr. Taylor also alleges discrimination because of his
termination from Federal Service on February 13, 2007. Here, his
appeal was not timely.
When an employee challenges an adverse personnel action
that is subject to appeal to the MSPB and that is coupled with a
discrimination claim - a “mixed case” - he must navigate a
procedural regime of Title VII regulations and Civil Service
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Reform Act regulations. 5 U.S.C. § 7702. Because courts bestow
labels such as “byzantine” and “extremely complicated” on this
statutory and regulatory framework, a brief description of the
structure is appropriate. Butler v. West, 164 F.3d 634, 638
(D.C. Cir. 1999).
First, the aggrieved party must decide whether to file
a “mixed case complaint” with his agency’s EEO office or file a
“mixed case appeal” directly with the MSPB. 29 C.F.R.
§ 1614.302(b). If he or she selects the agency EEO route,5 the
aggrieved party has 30 days from the EEO’s final decision to file
an appeal with the MSPB or a civil discrimination action in
federal district court. 29 C.F.R. §§ 1614.302(d)(1)(ii),
1614.310(a).
If an aggrieved party elects to appeal directly to the
MSPB or appeals to the MSPB after pursing the claim with the
relevant EEO office, an Administrative Judge makes an initial
decision, which becomes final within thirty-five days unless
either party or the MSPB itself seeks further review. 5 C.F.R.
§ 1201.113. Once the MSPB decision is final, the complainant has
three options: he or she (1) may appeal the discrimination claim
to the EEOC within 30 days, 5 C.F.R. § 1201.157; (2) appeal the
entire claim to the appropriate district court within 30 days; or
5
If an employee files in both places, the regulations
dictate that “whichever is filed first (the EEO complaint or the
MSPB appeal) shall be considered an election to proceed in that
forum.” 29 C.F.R. § 1613.403.
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(3) appeal the nondiscrimination claim to the Court of Appeals
for the Federal Circuit within 60 days. 5 U.S.C. § 7703(b).
When the MSPB’s decision dismisses the challenge on procedural
grounds and does not reach the merits of the case, the Federal
Circuit - rather than federal district courts - retain
jurisdiction. Powell v. Dept. of Defense, 158 F.3d 597, 599
(D.C. Cir. 1998).
On March 8, 2007, Mr. Taylor challenged his removal
directly with the MSPB, raising reprisal for his discrimination
claims as the Navy’s motivation for the termination. [Dkt. # 6,
Def. Ex. 34]. On May 3, 2007, the MSPB dismissed the challenge
for failure to prosecute. [Dkt. # 6, Def. Ex. 37]. The MSPB
decision became final on June 7, 2007. At that point, Mr. Taylor
did not pursue any of the three options outlined above - in
effect, abandoning his discrimination and removal claims.
Mr. Taylor argues that his decision to abandon his MSPB
claim did not foreclose him from pursuing the claims with the
EEOC. Instead, he contends that his March 28, 2007 EEOC
submission entitled “Formal Complaint for Discrimination,” should
take precedence over his MSPB claim, which was still pending at
the time. [Dkt. # 6, Def. Ex. 35]. Once he raised the
discrimination claims in his MSPB claim, however, Mr. Taylor had
to exhaust his remedies there. McAdams v. Reno, 64 F.3d 1137,
1143 (8th Cir. 1995)(finding that plaintiff’s abandonment of her
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discrimination claims before the MSPB prevented her from raising
them later in federal district court); Williams v. Munoz, 106 F.
Supp. 2d 40, 43-44 (D.D.C. 2000)(holding that plaintiff’s
election to raise retaliation claims before the MSPB precluded
her from pursuing those claims with the agency EEO, despite the
fact that she withdrew the claims during her MSPB proceedings).6
Even if he had requested timely review here, I would be compelled
to dismiss for lack of jurisdiction because the MSPB never
reached the merits of his case. Powell, 158 F.3d at 599.
3. Other Allegations
In addition to his non-selection and removal claims,
Mr. Taylor also makes a number of scattershot allegations of
discrimination – the agency improperly processed his EEO
complaint; the Navy improperly processed his workers’
compensation claims; the Navy improperly denied him use of his
paid leave time; the Navy denied his request to work from home
while he recovered from back surgery – and he alleges that his
termination was reprisal for his EEO complaint.
Mr. Taylor did not exhaust his administrative remedies
with respect to any of these claims. He raised them for the
6
In any event, Mr. Taylor did not comply with the
applicable EEOC deadlines either. Mr. Taylor did not make file a
Formal Complaint within the requisite 15 days after receiving
notice that his EEO counseling would be terminated. See [Dkt.
#6, Def. Ex. 36] (notifying Mr. Taylor that counseling would end
on April 30, 2007) and [Dkt. # 6, Def. Ex. 40] (Formal Complaint
filed by Mr. Taylor on June 12, 2007).
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first time in his March 28, 2007 Formal Complaint of
Discrimination, which was well after the expiration of the 45
days he had to initiate contact with an EEO counselor. [Dkt. #6,
Def. Ex. 35]. He argues that exhaustion is not required for
these claims because they are reasonably related to or grow out
of his initial discrimination allegations, but a plaintiff must
still exhaust administrative remedies for “discrete acts” of
discrimination or retaliation. Camp v. District of Columbia,
2006 WL 667956, *7 (D.D.C. 2006) (citing Coleman-Adebayo v.
Leavitt, 326 F. Supp. 2d 132, 137-138 (D.D.C. 2004) and National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). In any
event, the question of whether the additional claims are
reasonably related is irrelevant, because Mr. Taylor never
exhausted his remedies with respect to the initial allegations.
In the accompanying order, the defendant’s motion to
dismiss is granted with respect to the Rehabilitation Act claims,
and its motion for summary judgment is granted with respect to
the Title VII claims.
JAMES ROBERTSON
United States District Judge
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