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Miller v. Rosenker

September 25, 2008

RICHARD MILLER, PLAINTIFF,
v.
MARK V. ROSENKER, CHAIRMAN NATIONAL TRANSPORTATION SAFETY BOARD DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff Richard Miller brings this action against Defendant Mark V. Rosenker, in his official capacity as Chairman of the National Transportation Safety Board ("NTSB" or the "Board"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

One of Plaintiff's complaints was recently dismissed, Miller I (05-2478) [Dkt. No. 44], and Plaintiff's Motion for Reconsideration was denied on September 4, 2008 [Dkt. No. 48]. Three of his suits remain: Miller II (06-1071), Miller III (07-562), and Miller IV (07-1832).

The present matter is before the Court on Defendant's Motion to Dismiss [Dkt. No. 5] pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Plaintiff requests that the Court delay a ruling on the Motion so that he can conduct discovery to determine whether he was sufficiently mentally and physically disabled to warrant equitable tolling.

Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion to Dismiss is granted.

I. BACKGROUND

Plaintiff was employed by the Board beginning in June 1999. He worked as a Financial Management Specialist in the office of the Chief Financial Officer.

Plaintiff filed a formal discrimination complaint with the Board on July 15, 2005, alleging sixteen instances of discrimination based on gender, age, and retaliation.*fn1 On July 21, 2005, Defendant requested that Plaintiff clarify his claims and gave him fifteen calendar days to respond. Plaintiff twice asked for extensions of time to respond to the Board's request to provide additional information. Plaintiff does not deny that he never responded to the Board's request.

The Board issued its Final Agency Decision on September 23, 2005. It dismissed the complaint, finding that Plaintiff had failed to cooperate with the July 21, 2005 written request for additional information, as required by 29 C.F.R. § 1614.107(a)(7). The decision cited the "clear record of delay" by Plaintiff, and rejected his second request for an extension of time to provide additional information because he had "provided no substantive reason for his failure to clarify his claims, and no indication of when he may do so." The decision also outlined Plaintiff's two options for appealing the decision: file an appeal with the EEOC within thirty days or file a civil action in federal court within ninety days.

Plaintiff waited ten months before filing an appeal with the EEOC on August 1, 2006. During the period between September 23, 2005 and August 1, 2006, he made four filings in a separate civil action.*fn2 During this same period, he also filed another administrative complaint with the Board, alleging discrimination based on mental and physical handicaps, sex, age, and retaliation.

The EEOC dismissed Plaintiff's administrative appeal on December 15, 2006, finding Plaintiff's appeal to be untimely and finding no "adequate justification" for extending the deadline.

After ninety-one days, Plaintiff filed this action on March 21, 2007.

II. STANDARD OF REVIEW

To survive a motion to dismiss, a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "[O]nce a claim has been stated adequately, it may be ...


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