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Marc Bowman Brown v. Tom J. Vilsack

June 11, 2012

MARC BOWMAN BROWN, PLAINTIFF,
v.
TOM J. VILSACK, SECRETARY, U.S. DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendant's Motion for Partial Dismissal [Dkt. # 24]. For the reasons discussed below, defendant's motion will be granted, and with the exception of plaintiff's timely challenge to his termination, the complaint will be dismissed.

I. BACKGROUND

From July 2003 until his termination on July 25, 2009, plaintiff "was a Management/Information Technology Analyst, assigned to the Office of Program Evaluation, Enforcement and Review (OPEER), Information Policy and Capital Planning Division (ITPCPD)," at the United States Department of Agriculture ("USDA"). Mem. in Supp. of Def.'s Mot. for Partial Dismissal ("Def.'s Mem."), Ex. A (Final Agency Decision ("FAD") dated March 22, 2010) at 3. According to plaintiff, he has been "unjustly, and illegally victimized" by the USDA, Compl. at 1, which had taken various adverse personnel actions against him, see generally id. at 3-6.

First, plaintiff alleges that the USDA took away "all [his] job duties," leaving him with "virtually nothing to do for two straight years, despite . . . numerous requests for work," only to be reassigned to a new supervisor under whom he "was tasked to a specialty foreign to [him]." Id. at 2. Second, plaintiff claims that the USDA restricted his use of annual and sick leave, 1 notwithstanding his disability and his compliance with the Family Medical Leave Act ("FMLA"). Id. at 4-5. Third, plaintiff contends that the USDA suspended him on two occasions. See id. Plaintiff attributes these employment actions to his engagement in whistleblowing activity pertaining to the "illegal launch" of a computer system by the Associate Administrator of the Food Safety and Inspection Service, id. at 3, the filing of discrimination claims against the USDA, see id. at 3-5, and his disability, id. at 5.

Plaintiff filed two separate discrimination claims with the USDA's Equal Employment Office ("USDA-EEO"):

The issues presented . . . are whether the Food Safety and Inspection Service (FSIS) (Agency) subjected the [plaintiff] to harassment (non-sexual) based on physical disability (high blood pressure) and reprisal when:

FSIS-2008-00601

1. On April 17, 2008, [plaintiff's] supervisor informed him that his work performance was not meeting management's expectation and that [he] failed in his role as the liaison between FSIS Internal, Controls and the IT Policy and Capital Planning Division. [The supervisor] also noted that [plaintiff] made too many errors in his work, however, the supervisor based his conclusion on a version of a report that the [plaintiff] did not write;

2. On April 29, 2008, [plaintiff] was placed on leave restriction which required him to provide documentation to support his request for leave above and beyond what is required under the [FMLA];

3. Since April 29, 2008, [plaintiff's] supervisor has refused to sign his timesheet and instead has created altered timesheets, changing his Leave Without Pay (LWOP) status to Absent Without Leave (AWOL) to include May 13, 2008, and June 3-5, 2008; and

4. On June 24, 2008, [plaintiff] was issued a Notice of Proposed Suspension without pay for a maximum of five (5) days.

FSIS-2009-00502

1. On September 3, 2008, [plaintiff] received the final decision on the June 24, 2008, proposal, suspending ...


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