The opinion of the court was delivered by: Huvelle, District Judge.
Before the Court is defendant's motion to dismiss, or in the
alternative, for summary judgment, plaintiff's opposition, and
defendant's reply. Defendant argues that plaintiff has failed to exhaust
his administrative remedies. For the reasons set forth below, the Court
will deny defendant's motion.
Plaintiff Frederico Broom is an African American male who was employed
as a boiler plant operator by the Department of the Army at Walter Reed
Army Medical Center (Walter Reed) in the District of Columbia and at its
annex in Forest Glen, Maryland. He was born on July 16, 1956 and was
diagnosed with bipolar disorder in 1995 and with sleep apnea in 1997.
On January 10, 1997, an oil spill occurred at the Forest Glen annex.
Plaintiff maintains that he was not present when the spill occurred.
Defendant investigated the spill and determined that plaintiff was
responsible for the spill and did not report if. Defendant also
determined that plaintiff had been absent without leave on various
On May 16, 1997, plaintiff received a Proposed Notice of Removal from
his position, as a result of his responsibility for the oil spill and for
his being placed on AWOL for six days between January 2, 1997 and March
14, 1997. On May 19, 1997, plaintiff filed an informal complaint alleging
discrimination with respect to the proposed removal.
On October 30, 1997, defendant determined that plaintiff should be
removed from his position. He was offered a "last chance agreement,"
under which the removal action would be canceled after one year if
plaintiff complied with the terms of the agreement. Plaintiff declined to
sign the last chance agreement. On that day, plaintiff filed an informal
complaint alleging discrimination with respect to the last chance
agreement. He received a Decision of Proposed Removal on December 17,
1997, effective January 9, 1998, alleging absence without leave,
dereliction of duty in failing to report the oil spill, and failure to
follow regulations and procedures with respect to those matters. On
January 7, 1998, plaintiff filed an informal complaint regarding the
December Decision of Proposed Removal. On that day, he received a
document entitled, "Avenues of Redress (Rights and Responsibilities
Notice)" from the Army's EEO office. The five-page single-spaced document
contains a section entitled, "3. Responsibilities." In that section, it
(1) An appeal to the MSPB will not be accepted if
you have filed a timely formal complaint in writing
under the EEO complaint procedure or a timely
written grievance under the negotiated grievance
(2) A discrimination complaint filed under the EEO
complaint procedure will be dismissed if you have
filed a timely appeal to the MSPB or a
timely-written grievance under the negotiated
procedure on the same matter.
g. If your complaint is not resolved at the conclusion
of counseling, you may file a formal EEO complaint
within 15 calendar days of receipt of the counselor's
notice of right to file a discrimination complaint.
(Def.Mot.Exh. 1). The EEO counselor who gave him the document did not
explain the document to him or talk about his rights and
responsibilities, contrary to the provisions of the EEOC's October 1992
Management Directive 110 ("MD-110"), which required that EEO counselors
explain the requirements for initiating a formal complaint.
MD-110 imposed other procedural requirements upon defendant, as well:
Immediately upon receipt of a formal complaint of
discrimination, the agency shall acknowledge receipt
of the complaint in writing. . . . The agencies must
also inform the complainant of the issue(s) to be
investigated and, if appropriate, that the complaint,
or a portion of the ...